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Economic Liberty

7 min read

Part of Markets and money.

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Every episode (6)

Who argued it

Dick Carpenter · Jessica Thompson · Glenn Roper · Clint Bolick · Damon Root · Anthony Sanders

Occupational Licensing · Constitutional Law · Individual Rights · Regulatory Capture · Public Choice Theory · COVID-19 · Separation of Powers · Administrative State

Background

Definition and scope

Dick Carpenter, of the Institute for Justice, defines economic liberty as the right to earn an honest living free from unnecessary government intervention, and frames occupational licensing as its central modern battleground: an occupational license is a government permission slip to work, requiring workers to satisfy a licensing board rather than a consumer or employer. Carpenter states that such licenses affect about 25% of the workforce in the United States. New data shows that occupational licensing does nothing to increase quality (2022) In a separate episode he repeats the definition and the figure, adding that the right to earn an honest living is fundamental to living in the United States as a free person, and contrasting it with freedoms people take for granted, such as coming and going or associating with whom they want. New data shows that occupational licensing does nothing to increase quality (2022)

Bob Zadek distinguishes economic liberty from other liberties by asking where, in a predominantly free-market system, people are deprived of it. He argues that the founders held the same view, that occupational licensing is a relative economic newcomer, and that the political history of the country shows the right to the fruits of one’s labor and to transact business with whomever one wishes was part of the founding core. New data shows that occupational licensing does nothing to increase quality (2022)

Clint Bolick, asked by Zadek to explain the subset of economic rights, describes two: the right to free labor—contracting with another person to perform work at an agreed-upon salary without government intruding into the relationship—and freedom of enterprise, the right to establish a non-harmful business without extensive government interference. Bolick says these rights trace back to the time before the United States was a nation and were brought from England, and that they do not explicitly appear in the Constitution because they were so widely taken for granted that no one thought it necessary to enumerate them. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Constitutional foundations

Bolick ties economic liberty to the aftermath of the Civil War: emancipated blacks offered their labor at competitive wages and went into business, which annoyed the white gentry in the southern states who no longer had a servile labor supply. Southern states enacted Black Codes aimed at suppressing black labor by suppressing freedom of contract to negotiate wages, imposing occupational licensing laws and restricting private property rights. Those laws, Bolick says, were outlawed by the Civil Rights Act of 1866 and then incorporated into the Fourteenth Amendment through its Privileges or Immunities Clause—a clause he says was erased from the Constitution within a short time in the Slaughter-House Cases in Louisiana. Since then, he says, the courts have given virtually no protection to freedom of enterprise and economic liberty. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Damon Root locates the same idea in the Fourteenth Amendment’s free labor philosophy, attributed to the abolitionists and radical Republicans who ratified it in 1868: that each individual owns himself and the fruits of his labor, and that as long as he harms no one else, basic occupations—driving a taxi cab, for instance—should not require burdensome licensing processes. Root says the courts once protected these rights at the same level as freedom of speech and free association, and that this changed in the New Deal constitutional revolution of 1937 and 1938 and in a series of Supreme Court cases in the early 1940s, after which the Court deferred to regulators, lawmakers, government officials and bureaucrats and treated economic rights with very little respect. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)

Anthony Sanders, discussing a case about pumpkins sold across state lines, says the original purpose of the Constitution when it was drafted in 1787 was not so much the Bill of Rights but the trade wars between the states, which required a national free trade zone where people could earn an honest living selling across different markets. The Great Founding Fathers (2010)

Litigation and advocacy

Zadek describes himself as sympathetic to the Institute for Justice’s goals, saying he is offended by any statute that denies somebody the right to sell their services or goods to benefit their family, and calling such statutes un-American. Sanders says that what the Institute did with Kelo for eminent domain, it hopes to do for economic liberty—bringing public outrage to abuses such as licensing people or taking away rights to use their land, as in Lake Elmo. The Great Founding Fathers (2010)

Glenn Roper, of the Pacific Legal Foundation, says the organization’s mission is to protect individuals and entities against government overreach, promoting property rights, economic liberty, the separation of powers and equal protection, providing pro bono representation and donor-funded through a 501(c)(3). He states that with the last Supreme Court term the foundation was up to 12 victories in the United States Supreme Court. The Mini-Administrative State (2020) Mike Greenberg is described as a litigation attorney with the Institute for Justice handling cases promoting personal property rights, economic liberty and free speech, and as particularly active in civil asset forfeiture abuse. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

Timothy Sandefur, describing a proposed constitutional text, says he borrowed from the Missouri Constitution a protection for the fruits of one’s labor, reading: “No government shall prohibit the free exercise of religion or abridge freedom of speech or conscience, or infringe on the right of the fruits of one’s labors or the right to live a peaceful life of one’s choosing.” He says the idea behind protecting the fruits of one’s labors is economic liberty and private property rights—the right to earn a living honestly and keep the benefits of the transaction. Timothy Sandefur on The Libertarian Constitution (2021)

Across episodes: the same argument, restated

The same definition of economic liberty and the same occupational-licensing figure of about 25% of the workforce appear in two consecutive 2022 episodes with Dick Carpenter, with no development between them beyond the second episode’s fuller contrast with other taken-for-granted freedoms. New data shows that occupational licensing does nothing to increase quality (2022) New data shows that occupational licensing does nothing to increase quality (2022) Across the wider run, Bolick in 2018 and Root in 2014 give the same historical account—free labor, Black Codes, the Fourteenth Amendment, judicial retreat—while Sanders in 2010 and Sandefur in 2021 supply the founding-era and textual framings; the episodes show restatement rather than a changed position.

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