The 14th Amendment, responding to slavery, affirms the freedom to earn a living. The court ignored that message in 1873. And now it has again, 150 years later.
And it would have ended the injustice being done to Newell-Davis and those whom Louisiana’s government is, for its convenience, preventing her from serving. Instead, the court, which is currently accused of insufficient fidelity to precedents, has preserved one that enables government-inflicted abridgments of individuals’ rights., holding that Black people have no rights that White people are bound to respect.
Some Louisiana butchers contested the monopoly conferred by their state on a single slaughterhouse, saying this abridged their right to earn a living. Ohio’s Rep., the foremost author of the 14th Amendment’s first section, said it was to protect, inter alia, “the liberty … to.” This fundamental right, which is deeply rooted in this nation’s history, is the antonym of the slavery to which the 14th Amendment responded.
Because the court long ago eviscerated the straightforward “privileges or immunities” clause, occupational-licensing laws have been combated, awkwardly and without sufficient success, as violations of “process supposedly prevents capricious, arbitrary and irrational barriers to entry into this or that field. Courts have enforced this only intermittently and uneasily — partly because many are wary of unenumerated rights.
Louisiana’s argument, the petition said, is that “the Department can deprive people of constitutional rights because doing so allows it to oversee fewer people exercising their constitutional rights.” The PLF unavailingly reminded today’s court that 100 years ago the court said “the right to earn a living” is “the very essence of the personal freedom that it is the purpose of the Amendment to secure.
The court, deferring to its own blunders, chose to preserve a precedent that prevents robust responses to abuses such as Louisiana’s abridgment of Newell-Davis’s rights. The court should have rememberedin 1792 that it is “not a just government … where arbitrary restrictions, exemptions and monopolies deny to part of its citizens free use of their faculties, and free choice of their occupations.”
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