One right that is absolutely foundational to our humanity and inherent sense of self-worth is the right to earn a living. More broadly referred to as economic freedom, it is our right to come together in voluntary ways to engage in transactions and arrangements that leave all parties better off. Whether it be running a lemonade stand or managing a multibillion-dollar company, our right to apply ourselves to provide value to others is one of the most intimate liberties we possess. It is right there next to our right to speak our minds and to be safe from intrusions of privacy and it is one that has been fought for through the ages.
Sadly it is also one of the most neglected. The assault on our quintessential right to earn a living is also a recent innovation, dating back to the 20th century and the Progressive Era, where the notion that the government knew how to run our lives better than we can arose. Since then, the idea that people have an inherent human right to earn a living has been gradually eroded to the present day, culminating in horrific fashion with the use of “nonessential” business closures to combat Covid-19. Such a policy was not only an economic disaster but a spit in the face to hard working Americans, signaling to them that all men are created equal, but some men are more equal than others. Then in the face of such unconscionable violations of our rights, the courts stood silent, with only a few brave judges willing to bang their gavels in favor of defending the intent of the Constitution.
This brings us to the essential message and history found in Timothy Sandefur’s book, The Right to Earn a Living which was published in 2010 but now has become even more relevant. His work describes exactly how we got to this position, where our economic rights are no longer rights anymore but privileges at the mercy of the state and the mob.
The Right to Earn a Living
Although there is no line in the Bill of Rights that explicitly states our right to work as it does our right to free speech, it is clearly protected. The right to free speech and assembly in the 1st Amendment certainly allows you to cooperate with others to form a business and it also allows you to advertise your services. The 4th Amendment protects your right to privacy and says the government can’t just intrude on your private property when it feels like it; your property includes your business. The 5th Amendment outlines our due process requirements which explicitly protects our property and treasure through doctrines such as just compensation and the takings clause, which are directly linked to our economic freedom. Finally, there is the Contracts clause which bars the government from infringing on private contracts, such as business transactions, without a clear motive for the public interest.
Our right to earn a living goes back even further to English common law as Sandefur notes,
“Sir Edward Coke, wrote that the Magna Carta and the common law protected the right of “any man to use and trade thereby to maintain himself and his family.” A century later, that right which Coke saw as a traditional right of Englishmen, was among those that America’s Founders regarded as natural rights of all humanity.”
That is why an attack on economic freedom should be seen as just as morally shocking as an attack on our civil freedoms, for they are not only equal in importance but interlinked.
Oftentimes the right to work has been violated not simply for public well-being as one might expect through policies like minimum wage or restrictions on working hours or compelling a company to do certain things against its will, but out of a refusal to view the humanity of others. Sandefur writes about the great African-American abolitionist Frederick Douglass when he notes,
“When Master Hugh took away the fruits of Douglass’s labor he was asserting the power to control the essence of Douglass’s humanity – his creative faculty – and this treating him as a tool or as an inanimate object instead of a fellow human deserving of freedom.”
Just as we may recoil in horror when the government takes away the civic freedom of our fellow citizens without any just cause, so too should we when the government violates our economic freedom. It is our right as human beings to be able to work and apply ourselves as we see fit as long as we do not explicitly violate the rights of others.
Furthermore, Sandefur notes that oftentimes restrictions on the right to work, whether it be maximum hours or minimum wages set by the government, were made with malicious intent. Minimum wages were often made with the intent of excluding minorities from the workplace as they often were willing to work for less. Maximum hours laws aimed at protecting women explicitly saw them as inferior to men in their ability to provide services to society. Sandefur quotes Justice Sutherland on the matter,
“A woman ought to be emancipated from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.”
This is why many judges prior to the New Deal, which saw a drastic undoing on economic freedoms and a massive expansion of government power into economic life, supported economic freedom on moral grounds, not just economic. In fact, Sandefur notes that although many judges understood economic concepts, their writings on the matter rarely cited economic justifications for protecting economic freedom. Instead, they saw economic freedom on the same grounds as protections of civil freedoms, which are justified on moral and philosophical grounds. Protections against government restrictions on economic rights are essential to a free and prosperous society not just because without them the economy would suffer, but because the right to earn a living is an inherent part of our humanity.
Threats to The Right to Earn A Living
There’s no debate that this right has been trodden upon, especially during lockdowns. The unprecedented expansion of the regulatory state has greatly reduced our economic freedom through onerous rulemaking and laws such as occupational licensing. Such policies are justified through a weak sense of public safety but in practice, they simply work to the benefit of well-connected actors.
As a result of the left-wing populist and Progressive movements that sprouted in the late 19th century, the court system began to normalize attacks on economic freedom under the guise of the public interest. That was because Progressive intellectuals and activists believed that liberty cannot be equally achieved by all individuals unless the government took steps to curb economic powers. Sandefur writes,
“By 1934, attacks on the traditional concepts of economic liberty were a common feature of legal discourse. For years before Lochner was decided, Populists and Progressives argued that economic freedom must be curtailed to serve the interest of society and that both economic freedom and property rights were actually privileges created by the state, to be altered whenever the interest of society required it.”
The Lochner case he mentions is an important point in the history of economic freedom. It was a controversial 5-4 decision that affirmed the liberty of contract by declaring a New York restriction on working hours unconstitutional. This was counter to the populist and anti-market sentiments of Progressive judges such as Justice Oliver Wendell Holmes. Of course, Lochner was and is still widely condemned as the legal world does not share the same respect for economic freedom that existed prior to the 20th century. On the Lochner case Oyez notes,
“Justice Harlan in his dissent articulated reasoning that would inform later decisions in the post-Lochner era. Rather than requiring the government to prove that a law had a rational basis, he would require the party challenging the law to prove that the test was not met. (This is the current rule.)”
Justice Harlan essentially flipped the very ideal of due process and justice on its head when it comes to the idea of a rights-based society. Instead of the government having to prove that it had a compelling reason to infringe on economic freedom, the private citizen now has to prove that the government does not have a reason, which is virtually impossible.
That brings us to another important topic that Sandefur addresses, which is the rational basis test. According to Wex Law,
“To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.”
Today the rational basis test is one of the more important thresholds to address in ongoing lawsuits against lockdowns and business closures. When it was created, it was and still is an incredibly vague rule that gives the government tremendous power to violate rights. Sandefur writes,
“Nebbia abolished the Munn model, declaring that government could regulate businesses of any sort so long as the regulation was “rationally related to a legitimate government interest.” That is as long as elected officials might have believed the law had some connection to some goal the legislature had the authority to pursue, the law would be upheld as constitutional.”
Essentially with the advent of this precedent, the floodgates are open for the state to do virtually anything as long as it could find a ballpark reason to do so. Of course, when there is certainly more context and complications, economic freedom becomes a privilege under this doctrine.
Sandefur notes that from the arbitrary milk price controls affirmed in the Nebbia decision, the state has continued to trample and disrespect all sorts of economic rights. In a chapter on regulatory takings, he notes that citizens are entitled to just compensation if the government’s policy causes economic damage, but that has now been changed to a standard that only applies if the government destroys the entire value of your property or business.
In effect, that means the government will likely never give out compensation for damages because it can claim that it has not reduced value to zero. Many legal scholars even today complain that protections to freedom like just compensation financially inhibit the government from doing what it seeks to do, which is kind of the point. AIER has noted the unrestrained growth of the regulatory state and the dangers it poses in an article here. The right to earn a living is being drowned in a sea of paperwork and regulatory rulemaking with no end in sight.
The concepts I’ve chosen to cover in this summary barely scratch the surface of the depth of knowledge that Sandefur provides in his book. He expertly outlines and defends the philosophical right to earn a living, which is not only needed from an economic perspective but a moral one as well.
Economic freedom is intrinsically linked to our humanity as innovative and industrious people. It allows us to do everything from building awesome financial systems capable of moving billions of dollars to intimate cultural experiences such as purchasing home-cooked meals from a local restaurant. The assault on our right to earn a living began over a hundred years ago and has now become the accepted reality today. It is fundamentally rooted in a vision of the world that is not only ignorant of sound economics but lacks the moral sensibility to recognize the humanity of work.