In his May dissent in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Pennsylvania Supreme Court Justice David Wecht berated his colleagues for letting a legal challenge proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.
The Pennsylvania Supreme Court, Wecht complained, is now living in its “own Lochner era”—a reference to a 115-year-old U.S. Supreme Court decision, Lochner v. New York, which struck down a state regulation on the grounds that it served no valid health or safety purpose and violated the economic liberty protected by the 14th Amendment. “For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote. “Most now recognize that those decisions had nothing to do with the text or history of the Constitution.”
Wecht should read more history, starting with the speeches of the late Rep. John Bingham (R–Ohio). In 1866, Bingham served as the principal author of Section 1 of the 14th Amendment, which, among other things, forbids states from passing or enforcing laws which violate the privileges or immunities of citizens. As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”
That view was widely shared by those who framed and ratified the 14th Amendment. Even those who opposed the amendment’s passage did so because they knew it was designed to protect economic liberty from overreaching state regulation. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities,” including “the right to contract.” He continued: “I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities.”
Contrary to Wecht’s flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution.
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