The Right to Earn a Living:

Tim Sandefur on a very interesting pending 9th Circuit case, in which the court will have to decide whether an occupational regulation that the government's own expert deems irrational is nevertheless constitutional.

Sandefur also addresses the right to earn an honest living more generally. I wasn't aware that the 10th Circuit held in 2004 that "absent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest." Such a holding is contrary to hundreds of years of Anglo-American thinking.

It's one thing to say, as courts have done in the past, that any public-spirited rationale for a law restricting employment rights constitutes a sufficiently rational basis to uphold the law, or even to say that a court will make up such a rationale if the state doesn't provide one, as the Supreme Court has occasionally done. I think this is wrong, but at least it's consistent with the long-standing ideal that restrictions on occupational liberty must have a public purpose, and not simply be an effort to promote private monopolistic interests. The idea behind this weak rational basis test is that courts should defer to legislative judgments, not that protectionist legislation is inherently legitimate.

It's much worse (though perhaps more honest) for a court to find that no public-spirited rationale for particular restrictive legislation exists, and to nevertheless uphold the law as a naked exercise of political power for the benefit of a special class. This type of law that has been disfavored in our constitutional tradition at least since the Statute of Monopolies was enacted in England in 1623.