Anastasia P. Boden
150 years ago, the Supreme Court tore a hole through civil rights law when it drastically narrowed the scope of the Fourteenth Amendment. In the Slaughter‐House Cases, the Court ruled that the Privileges or Immunities Clause protected very few rights from state infringement: rights of national citizenship like the freedom to access seaports or to peaceably assemble.
Ever since, scholars, historians, and litigants have tried to persuade the Court to undo its mistake. While they’ve been partially successful in convincing the Court to protect things like freedom of speech and other enumerated rights from state overreach, they’ve been less successful when it comes to economic rights.
This is a huge failure of civil rights law. Historically, occupational regulations have been weaponized against politically powerless groups to keep them from competing. From the Chinese laundry owners in Yick Wo v. Hopkins, to women like Myra Bradwell, who was kept from becoming a lawyer merely because she was a woman, people require economic freedom to thrive. When Courts refuse to protect that freedom, they leave one of our most precious constitutional rights to the whim of the legislature.
Even today, licensure laws and other economic regulations continue to deprive people of opportunity for largely protectionist reasons. Take Ursula Newell‐Davis, who has been engaged in a multi‐year battle to open a care business for special needs kids. Louisiana shut her out of the industry solely to ease its workload, which it contends self‐evidently benefits the public. Federal courts have thus far rejected Ms. Newell-Davis’s claims that the state is depriving her of the right to enter a lawful occupation.
Given courts’ unwillingness to protect the right to earn a living under the Fourteenth Amendment, it’s time to try something new. The Robert A. Levy Center for Constitutional Studies is calling for papers on how to restore economic liberty by looking beyond the Fourteenth Amendment to other parts of the Constitution or sources of law.
I’m copying our call for papers below and I look forward to seeing what you come up with.
Most people would be hard‐pressed to define the “American Dream” without some reference to economic freedom. From Benjamin Franklin’s dozens of inventions (bifocals! A flexible catheter!), to self‐made man Frederick Douglass, to serial inventor Joy Mangano’s miracle mop, Americans believe that with a good idea and enough hard work, anyone can enjoy economic success—no matter the circumstances of their birth.
They’d be surprised, then, to learn that courts do very little to protect the right to earn a living. By all accounts, that precious right was intended to be a centerpiece of the Fourteenth Amendment. Yet Federal courts have all but written it out of the Constitution.
Despite vast scholarship by heavy hitters like Bernard Siegan and Randy Barnett and decades of public interest litigation with sympathetic facts, the Supreme Court refuses to consider the right to earn a living a “fundamental” right protected by the Due Process Clause. And apart from a few scattered dissents, the Court appears similarly disinterested in reviving the Fourteenth Amendment’s Privileges or Immunities Clause. Many scholars believe that Clause was drafted with an eye towards protecting economic liberty in particular, but it was (in the words of Akhil Amar) “strangled in its crib” by the Slaughter‐House Cases. As a result of that 150‐year‐old mistake, courts have upheld even the most absurd laws (ie. licensure requirements for florists) in Fourteenth Amendment cases involving plaintiffs left destitute by government overreach.
If we want the judiciary to protect economic freedom, it’s time to try something new.
Are there constitutional theories besides due process and equal protection that could provide more effective protection for economic liberty? The Cato Institute’s Robert A. Levy Center for Constitutional Studies is calling for legal scholarship on legal theories that would protect the freedom to contract, to innovate, to earn a living, and to freely engage in mutually beneficial economic transactions. The Center seeks a mix of papers that are both theoretical and practical; that both suggest new litigation strategies and identify specific policies that seem ripe for legal challenge. The papers will be compiled in a special journal edition produced by the Cato Institute, which can serve as a blueprint for scholars, researchers, and litigants who seek to restore the Constitution’s promise of opportunity through economic freedom.
Examples include:
Evidence of the original meaning of the Contracts Clause and ways it might be reinvigorated through litigation
Potential theories under the Citizenship Clause
State constitutional anti‐monopoly and anti‐gift provisions and other causes of action unique to state law or state constitutions
The Ninth Amendment
Questions left open by North Carolina Dental Board and ways in which parties can use the Sherman Act to hold regulatory bodies accountable for anti‐competitive conduct
What’s left of the dormant Commerce Clause after National Pork Producers v. Ross?
Empirical research about licensure creep or theories of how regulatory bodies might be acting ultra vires
Surveys of laws that are particularly ripe for challenge
Lessons learned from the past 20 years of economic liberty litigation
Submission Details: Please submit a brief research proposal that describes a new or underexplored constitutional protection for economic liberty. Proposals should be submitted by November 1, 2023, to Anastasia Boden at aboden@cato.org. All proposals will be reviewed on a rolling basis and approvals will allow authors to begin work early.
Honorarium and Other Support:: Authors of accepted papers will receive a $2000 honorarium. Authors will be offered expert feedback on their research, along with peer‐review and copyediting assistance. Papers will be published as a special journal volume through the Cato Institute. If requested during the initial proposal period or soon thereafter, we also will try to connect potential coauthors with different legal and empirical expertise.
Symposium: Completed drafts are due by March 1, 2024, but need not be in polished or publishable form. Each author will be expected to formally comment on others’ papers. Authors will present their papers at symposium at the Cato Institute in April of 2024. Cato will cover the cost of hotel accommodation and reasonable travel expenses to the symposium.
Contact Information: For questions regarding the call for papers, please contact Anastasia Boden at aboden@cato.org
Deadlines:
November 1, 2023: Deadline for submission of paper proposals.
November 21, 2023: Authors notified of acceptance.
March 1, 2023: Deadline for draft papers.
Early April 2024: Presentation of papers at half‐day symposium at Cato Institute.
Early May 2024: Deadline for revisions and submission of final papers.
Summer 2024: Target for publishing of papers in journal form.