What we choose to do for a living is kind of a big deal: It defines us and shapes us more than almost any other aspect of our lives. This has been long understood—and you might even call it “deeply rooted” in American culture. Indeed, that’s what one federal appellate judge, Jim Ho of the Fifth Circuit, said last month. Yet the U.S. Supreme Court seems to believe that this essential aspect of liberty is disconnected from the Constitution.
When the court announced its decision in Dobbs v. Jackson Women’s Health Organization last summer, overturning Roe v. Wade, the implications stretched far beyond abortion. An issue lurking beyond the headlines was how the U.S. Constitution more generally protects liberty itself. Unfortunately, despite their disagreement on the issue of abortion, both sides in Dobbs gave a truncated view of liberty by drawing arbitrary lines. This was nothing new—in fact, the justices have done it for decades. Nevertheless, for those who believe the Constitution broadly protects liberty, the decision provided guidance for the future, particularly when it comes to the right to earn a living—and maybe even a bit of hope. That’s because the court stated that if it can be demonstrated that a right is “deeply rooted” in history and tradition, then the court might get more involved in protecting that right. That is truer of the right to earn a living than almost anything else.
Due Process for What is Due
First, some background on how our rights are protected: Adopted in the wake of the Civil War, the due process clause of the Fourteenth Amendment guarantees no state shall “deprive any person of life, liberty, or property, without due process of law.” The clause has long been understood to protect against arbitrary denials of liberty, even when the legislature democratically passes a statute. Many have persuasively argued that the better way to protect most rights is through another clause in the same amendment—the privileges or immunities clause. However, the Supreme Court effectively nullified the “privileges or immunities” language soon after it was adopted in 1868. Nevertheless, there are strong reasons to believe that the due process clause itself protects substantive rights as well. This would include all kinds of freedoms not specifically enumerated in the Constitution—such as choosing your occupation, using your property as you wish, raising your children, growing your own vegetables or even eating unhealthy snacks on your couch.
And for a time, the courts agreed that due process did include many of these rights, such as the right to earn a living. This didn’t mean every regulation that restricted these rights was unconstitutional—far from it. But it did mean that a state’s asserted need for a law was balanced against the imposition on an individual’s liberty. This protection was sporadic, but frequently, it was real: The court looked at actual facts, assessed actual legislative motivations and often found laws to not further legitimate governmental interests but instead to violate individual rights. This method usually concerned economic liberties, but at times, it went beyond them, including safeguarding the liberty of parents to educate their children. Further, in the 1920s, the Supreme Court also started enforcing the Bill of Rights against the states—previously only applicable to the federal government—as an aspect of the same “due process of law.” Today, we think of the Bill of Rights as simply being funneled through the Fourteenth Amendment against the states. But in fact, the court has applied them to the states because those rights are aspects of liberty that the due process clause protects in much the same way that it has protected other what are commonly called “unenumerated” rights over the years.
A New Deal—But Some Deals Are More Equal than Others
The Supreme Court’s protection of unenumerated rights mostly gave way in the New Deal. The justices didn’t completely surrender, but they only stayed engaged in a few areas. These areas included parts of the Bill of Rights and a couple other—seemingly random—unenumerated rights, such as the right not to be sterilized and the right to travel. It also seemed to leave alone the right of parents to direct the education of their children. These various areas received “heightened” protection, while laws regulating anything else became unconstitutional infringements on liberty only in the most extreme cases. This included the rise of the “rational basis test” and the massive barriers most Americans face today in federal court fighting for disfavored rights, such as economic liberties. Under this test, just about any law can be found to be constitutional if a judge can imagine facts that might connect the law to a legitimate government interest.
In the 1960s and 1970s, the Supreme Court’s haphazard protection of unenumerated rights grew but remained limited. For example, the court added the right to obtain birth control, the right to obtain an abortion and the right to live with relatives. These were pretty hodge-podge. It is hard to defend, for example, why these rights were included but the right to earn a living was not. Of course, the cynical (and probably correct) answer is the court simply accepted state intervention in the economy. But whatever the reason, the justices never could defend the distinction between economic liberty and other liberties. They just moved forward anyway.
Thus, instead of the Fourteenth Amendment broadly protecting “liberty,” there were random islands of protection in an ocean of government control.
Dobbs Deniers, on Both Sides
This brings us to the Dobbs case. The question the Supreme Court addressed was, essentially, should abortion continue being one of these random islands? Interestingly, in writing for the court, Justice Samuel Alito briefly asked why there isn’t just a broad “right to autonomy.” In other words, why is the court protecting islands that aren’t even in the same part of the ocean—why not the whole ocean instead? That could cover all of the rights mentioned above. The court flatly rejected this approach because it would “prove too much. Those criteria … could license fundamental rights to illicit drug use, prostitution, and the like.”
But that’s a silly strawman argument. If the court did recognize a general “autonomy” right, it wouldn’t mean that drug and prostitution laws would automatically be unconstitutional. It just would mean that the court would balance the state’s interest with the individual’s right to exercise his or her liberty. Indeed, that’s how the court could address the abortion question, which uniquely has a “potential life” on one side of the balance. But instead, the court chose to stick with islands of specific, random rights receiving constitutional protection amid most other exercises of “liberty” that aren’t given much protection at all.
And going forward, the court readopted a test it had articulated in various forms before: the Glucksberg test, named after a case in which it rejected a right to assisted suicide. Under that test, in order for an unenumerated right to receive heightened protection, it must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” plus the right must be carefully defined at a specific level. Thus, a general right to “bodily autonomy” or “economic liberty” is too general and abstract.
In the lower courts, this has, time and again, stymied arguments that certain liberties that the court has not already recognized under Glucksberg are themselves protected. In one case, patients who wanted to take potentially lifesaving experimental cancer drugs which the FDA had not yet approved argued that the right to take drugs to try to save one’s life is a “deeply rooted” right that the FDA had denied. The court recast the right narrowly as a right to take drugs that were at a specific level of the FDA approval process, something not “deeply rooted” (and obviously so, considering those levels are recent regulatory inventions).
Rewriting History To Kill Economic Liberty
Like the Dobbs majority, the Dobbs dissent had a strawman of its own. The dissenting justices championed the long-established general right to bodily autonomy, a limit “on a State’s power to assert control over an individual’s body and most personal decisionmaking.” Indeed, it should go without saying that the right to control your own person is an important liberty. But what the dissent completely left out is why the right to bodily autonomy—although a bit bigger of an island than the majority’s approach—doesn’t reach economic liberty. The only answer it gave was some exceedingly bad history, asserting that those old economic liberty protections mentioned above were jettisoned because the Great Depression “disproved” the “assumption that a wholly unregulated market could meet basic human needs.”
That is absurd. The Supreme Court never protected the market from all regulation, and the Great Depression hardly “disproved” the court’s limited efforts to protect economic freedoms. Perhaps that was what a few people thought in the 1930s in the middle of an emergency, but it’s exceedingly ignorant for these justices to believe now. Scholar after scholar—including many on the left—have demonstrated that the so-called Lochner era of the early 20th century (named after the 1905 case Lochner v. New York) was hardly one where the court dictated a “wholly unregulated market.” The dissent’s message is in the right place: The Constitution generally protects liberty. But preventing that protection from extending to economics is unprincipled and indefensible.
The Right To Earn a Living Is Deeply Rooted
What can we take away from Dobbs? In many ways, it does not affect other unenumerated rights all that much. Specifically for the right to earn a living—since it was already not a “favored” right—efforts to fight irrational economic regulations under the rational basis test continue to be difficult. But Dobbs also is sobering in that it reaffirms that no justice seems to be champing at the bit to give more rights heightened protection.
However, there are ways to test that reticence. The court has also been very interested in history recently, not just in Dobbs. Even though the court seems wary of embracing economic liberty and other unenumerated rights, many manifestations of liberty are, without a doubt, “deeply rooted” in our history, from growing your own food to running a business out of your garage to feeding the homeless (a right local governments shamefully violate). Indeed, that’s what Judge Ho discussed in his widely noted opinion last month, in which he said “various scholars have determined that the right to earn a living is deeply rooted in our Nation’s history and tradition.”
Future civil rights litigation will undoubtedly present a history of the right in question to see if it assists in catching the courts’ attention. Maybe it won’t establish a specific liberty as a “fundamental right,” but it might nudge things to a more rights-protective way under the rational basis test. And the most obvious candidate is the right to earn a living. The next few years will see if history might be the way forward to grow our islands of liberty.