The Institute for Justice has recently filed a new case challenging an especially egregious infringement on economic liberties under the Constitution:
A civil liberties law firm has filed suit against the state of Texas on behalf of eight eyebrow-threading entrepreneurs, several of whom are based in San Antonio.
The Institute for Justice, Texas Chapter, is alleging the state government has violated the entrepreneurs’ constitutional rights by requiring them to go through a licensing process that mandates 1,500 hours of instruction at an estimated cost of $20,000…..
Wesley Hottot, lead attorney for the Institute for Justice Texas Chapter, says Texas’ proud heritage as a beacon for entrepreneurship is in danger “when the state tries to regulate every new industry rather than trusting entrepreneurs and consumers.”
Hottot says eyebrow threading is an ancient technique for removing unwanted eyebrow hairs using tightly wound cotton thread. “Threading is a booming industry in Texas because it is cheaper, faster and less painful than waxing,” he says.
But now the TDLR has threatened this small business-based industry by requiring practitioners to obtain what Hottot says are “expensive and irrelevant licenses in Western-style cosmetology.”
“Threading is not mentioned anywhere in state law, yet TDLR expects threaders, some with over 20 years of experience, to immediately stop working and spend $20,000 obtaining up to 1,500 hours of instruction in government-approved beauty schools that do not even teach threading,” Hottot says. “Further, threaders must pass government-approved cosmetology exams that do not test threading.”
Here is a link to an IJ video on the case. Despite the longstanding claim that judicial protection for economic liberties is just “judicial activism,” such protection actually has strong support in the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, and other clauses. The original meaning evidence is discussed at great length in Bernard Siegan’s classic book Economic Liberties and the Constitution, and some of it is summarized in Alan Gura’s brief for the petitioners in the McDonald gun rights case currently before the Supreme Court.
Even if we accept the idea that economic liberties deserve significant judicial protection, there is room for debate as to how broad that protection should be. However, this case is sufficiently egregious that it is difficult to imagine any reasonable basis for judicial protection of economic liberties that would allow this regulation to be upheld.
CONFLICT OF INTEREST WATCH: As regular readers probably know, I have done various pro bono projects for the Institute for Justice over the years, and was a summer clerk there when I was a law student.
readery says:
iJ’s argument seems to be that Texas is indirectly banning eyebrow threading. Would IJ object if Texas simply banned eyebrow threading directly?
December 17, 2009, 8:06 pmDave N. says:
I didn’t have a clue what “eyebrow threading” actually was until the fourth paragraph of the block quote.
I can see the State of Texas’ point, but I think IOJ has a better argument. If Texas wants to include “eyebrow threading” in its definition of comsetology, that’s what Legislatures (as opposed to bureaucrats) are for.
December 17, 2009, 8:54 pmNew Institute for Justice Economic Liberties Case | Liberal Whoppers says:
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December 17, 2009, 9:46 pmChris says:
I’ve got a short piece on a textualist-originalist reading of the Privileges or Immunities Clause here–it focuses on “of” (i.e., what relationship is required between a right and “citizens of the United States” to be protected?) and the meaning-application distinction.
December 17, 2009, 10:27 pmTexas Lawyer says:
Ilya:
I thought your conflict of interest watch was going to say that you were a frequent eyebrow threadee or that you had considered threading others eyebrows yourself. The one you mentioned is much more boring.
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December 18, 2009, 12:07 pmreadery says:
Let’s suppose a high school student came up with a new technique for open-heart surgery and wanted to apply the technique. If the state objected, he’d make the same argument IJ is making. Nobody else is doing the technique. So why should he have to go to college and med school, where the technique won’t even be taught, in order to practice a technique nobody else does?
Well, the state would have two basic arguments. The first argument is that the technique won’t necessarily always work perfectly, and if there’s a problem someone will have to clean up the mess. Being able to deal with problems that may arise requires a larger set of skills than simply being a one-technique wonder.
The second involves relationship with clients. A doctor who only knows a single technique may be inclined to unduly steer patients to that technique when they may actually need something completely different. a doctor, even a specialist, has to know a larger set of skills to be able to place the specialty in context and be able to have an objective view if the specialty even applies. In medicine, after all, we don’t entirely trust patients to know exactly what they want down to the specific technique. We expect them to come in knowing only fairly superficial information about their problem, and we expect to need the help of an expert even to understand exactly what their underlying problem is, let alone what relevant techniques there are to choose from and which might best address the specific situation.
Now, Ilya and I, and for that matter Socrates, probably believe that cosmetology is not really as important to life as medicine and we may not believe, for example, that a cosmetic emergency is really an emergency on a par with a cardiac emergency. But ours is not the only opinion, and there are people who really think a cosmetic emergency is terrible tragedy. And they have votes. Should people be allowed to practice a cosmetic technique without being able to clean up the messes that may arise if they have a problem? And can ordinary people be trusted to deal with cosmetic matters on their own without the help of an expert?
After all, the superficial solutions the cosmetic expert gives to their superficial problems may indeed be superficial, but one fundamental fact about our society is that the superficial can be just as fraught with complexity, jargon, imponderableness, and impenetrable density as the important and meaningful. Just as any feng shwe expert, sports fan, or poker player.
Just as the mediocre are as entitled to a little representation as the Cardozos and the Frankenfurters, so the superficial are just as entitled to the benefit of expertise and guidance in their superficiality as the profound are in their profundity. There’s no necessary relationship whatsoever between the complex and the important. All it takes is a little creative marketing and cosmetology can be made into every bit as complex a subject as medicine, or sports, or gambling, or finance. After all, no-one today would expect mere consumers to be able to choose a wine without the benefit of a sommelier, a dress without the benefit of a personal shopper, or a golf club without the benefit of a caddy? Why should cosmetics be any different?
Socrates recommended that people choose the simple life as the way to get out of all this, but people don’t have to take his advice. And very few in history have. “Rational” here doesn’t refer an obscure elite who alone are rational, it refers only to the rationality of an ordinary person. And ordinary people in our society like their cosmetics really, really, really complex, with far more choices then they could ever actually need.
Thus Texans can rationally decide that they want cosmetologists capable of steering them through the maze of choices available in modern society with solutions crafted their needs, and rationally decide they don’t want one-technique wonders who aren’t capable even of cleaning up after their own mistakes, and unable to give people reliable advice about whether to choose this technique or some other for their problem.
December 20, 2009, 1:36 amConcords Last Minuteman says:
Wow, what an expository tour-de-force. Very compelling, well written, but ignores one thing. The government, even at the urging of a majority of (superficial) voters, does not have the right, the authority, to interfere in my engaging in commerce with consenting adults.
IF I want to go to an untrained cosmetologist, or barber, etc. that is my choice, and no government can intercede to “help” me.
December 20, 2009, 10:32 am