GEORGE F. WILL offers this advice to the next Republican president:
To his first nominee . . . this president should . . . say, "Welcome to Washington . . .
. . . Justice Willett."
He is talking about Texas Supreme Court Don R. Willett. First in his poor Kaufman County family to graduate from high school and college. (His widowed mother waited tables to feed the family.) Former rodeo rider and professional drummer. Proud Baylorite. Conservative. Intellectual.
(You know you are talking to a progressive when he breaks into laughter at the conjoining of "conservative" with "intellectual." To progressives, conservatives can never be intellectuals because conservative think unapproved thoughts.)
Mr. Will's enthusiasm for Justice Willett was stirred by the judge's brilliant fifty-two-page concurring opinion in Amish Patel v. Texas Department of Licensing and Regulation, which overturned a Texas law that, Mr. Will writes:
. . . imposed on aspiring eyebrow threaders -- disproportionately low-income minorities -- burdensome requirements of cosmetology training having no rational relationship to public health or safety. Instead the law erected barriers to entry into a profession, benefiting practitioners who are averse to competition.
(George F. Will, "The 110 year-old case that still inspires Supreme Court debates," washingtonpost.com, July 10, 2015)
Justice Willett's opinion opens with this remarkable quotation from Frederick Douglass:
To understand the emotion which swelled in my heart as I clasped this money, realizing that I had no master who could take it from me -- that it was mine -- that my hands were my own, and could earn more of the precious coin . . . . I was not only a freeman but a free-working man, and no master . . . stood read at the end of the week to seize my hard earnings.
Justice Willett then writes:
Frederick Douglass's irrepressible joy at exercising his hard-won freedom captures just how fundamental -- and transformative -- economic liberty is. Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.
The Texas case turns in part on an ancient U.S. Supreme Court case that also upheld economic liberty, Lochner v. New York (1905). It held that the due-process clause of the Fourteenth Amendment supports liberty of contract against overreaching state regulation.
To progressives, for whom state regulation of this, that, and the other is a political sacrament, Lochner was anathema. In 1937, the U.S. Supreme Court overturned Lochner and read economic liberty out of the Constitution. Ever since, the high court has upheld most economic laws and regulations, no matter how onerous, as a proper exercise of state power.
Mr. Will's main point in this essay is that Justice Willett gets Lochner right and U.S. Supreme Court Justice John Roberts gets it wrong.
[In] his same-sex marriage dissent, Roberts referred to "the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner." But Lochner was not "unprincipled" unless the natural rights tradition (including the Declaration of Independence) and the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") involve no principles.
Oblivious of, or disregarding, evidence about the base motives behind the law Lochner overturned [those motives being the desire of large, unionized bakeries "to crush their small, family-owned, nonunionized competitors"], Roberts expressed an aversion to what he oddly calls "implied fundamental rights." And he denounced the "freewheeling notion of individual autonomy" affirmed by Lochner's recognition of "the general right of an individual to be free in his person and in his power to contract in relation to his own labor." . . .
Judges like Roberts consider it virtuous to refuse to closely examine and forthrightly invalidate laws that, like the one Lochner overturned, arise from disreputable motives and have unjust consequences. To such judges, Willett responds: "Judges exist to be judgmental, hence the title."
Mr. Will summarizes the matter thusly:
Threaders without licenses are, Willett said, less dangerous than government with an unlimited license to decide who gets bureaucratic permission to pursue particular vocations. Locher asserted that "majorities don't possess an untrammel right to trammel." Lochner means that government must prove the public necessity of its restrictions on economic liberty. Sensible judicial deference to government regulations does not require judicial dereliction of its duty to gaze skeptically on government's often ridiculous rationalizations of them. Since the New Deal, when courts abandoned protection of economic liberty, government has felt no obligation to produce evidence of the rationality of its restrictions. So, disreputable reasons go unchallenged.
Mr. Will's righteous conclusion:
The next Republican president should ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments' affirmation of unenumerated rights? To his first nominee, however, this president should simply say: "Welcome to Washington, Justice Willett."
We can do no better than to end with the last paragraphs of Justice Willett's opinion -- words that are to progressives as garlic is to progressives' bloodsucking ancestors (in a figurative sense), vampires. Words such as "economic liberty," "individual freedom," and "limited government."
(Footnotes omitted)
Governments are "instituted among Men" to "secure" preexisting "unalienable Rights." Our federal and Texas constitutions are charters of liberty, not wellsprings of boundless government power. Madison adroitly divided political power because he prized a "We the People" system that extolled citizens over a monarchial system of rulers and subjects. The trick was to give government its requisite powers while structurally hemming in that power so that fallible men wouldn't become as despotic as the hereditary monarchs they had fled and fought.
Economic liberty is "deeply rooted in this Nation's history and tradition," and the right to engage in productive enterprise is as central to individual freedom as the right to worship as one chooses. Indeed, Madison declared that "protection" of citizens' "faculties of acquiring property" is the "first object of government," and admonished that a government whose "arbitrary restrictions" deny citizens "free use of their faculties, and free choice of their occupations" was "not a just government." When it comes to occupational licensing -- often less about protecting the public than about bestowing special privileges on political favorites -- government power has expanded unchecked. But government doesn't get to determine the reach of its own power, something that subverts the original constitutional design of limited government. The Texas Constitution imposes limits, and imposes them intentionally. Bottom line: Police power cannot go unpoliced.
I believe judicial passivity is incompatible with individual liberty and constitutionally limited government. Occupational freedom, the right to earn a living as one chooses, is a nontrivial constitutional right entitled to nontrivial judicial protection. People are owed liberty by virtue of their very humanity -- "endowed by their Creator," as the Declaration affirms. And while government has undeniable authority to regulate economic activities to protect the public against fraud and danger, freedom should be the general rule, and restraint the exception.
The Founders understood that a "limited Constitution" can be preserved "no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing." Judicial duty -- "so arduous a duty," Hamilton called it -- requires courts to be "bulwarks of a limited Constitution against legislative encroachments," including holding irrational anticompetitive actions unconstitutional. Such is life in a constitutional republic, which exalts constitutionalism over majoritarianism precisely in order to tell government "no." That's the paramount point, to tap the brakes rather than punch the gas.
The Court today rejects servility in the economic-liberty realm, fortifying protections for Texans seeking what Texans have always sought: a better life for themselves and their families. There remains, as Davy Crockett excitedly wrote his children, "a world of country to settle."
Amen.
Read the case. It's a brilliant and inspiring civics lesson cleverly disguised as a court opinion.
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