Ashish Patel, Anverali Satani, Nazira Momin, Minaz Chamadia, and Vijay Lakshmi Yogi v. Texas Department of Licensing and Regulation ( 2015 )

IN THE SUPREME COURT OF TEXAS
════════════
NO. 12-0657
════════════
ASHISH PATEL, ANVERALI SATANI, NAZIRA MOMIN, MINAZ CHAMADIA,
AND VIJAY LAKSHMI YOGI, PETITIONERS/CROSS-RESPONDENTS,
v.
TEXAS DEPARTMENT OF LICENSING AND REGULATION, ET AL.,
RESPONDENTS/CROSS-PETITIONERS
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
══════════════════════════════════════════
JUSTICE WILLETT, joined by JUSTICE LEHRMANN and JUSTICE DEVINE, concurring.
To understand the emotion which swelled 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 Hugh stood ready at the end
of the week to seize my hard earnings.1
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.2
Texans are doubly blessed, living under two constitutions sharing a singular purpose: to
secure individual freedom, the essential condition of human flourishing. In today’s age of
1
FREDERICK DOUGLASS, THE LIFE AND TIMES OF FREDERICK DOUGLASS 259 (photo. reprint 2001) (1882).
2
Honest work, Pope Francis recently reflected, means more than just earning our daily bread: “Where there
is no work, there is no dignity.” Pope Francis (Pontifex). June 11, 2014, 1:11 a.m. Tweet. Available at
https://twitter.com/Pontifex/status/608909299704709120.
staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch
of government—it is unsurprising that people mistake majority rule as America’s defining value.3
But our federal and state charters are not, contrary to popular belief, about “democracy”—a word
that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th-
and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly
divided power to enshrine a promise (liberty), not merely a process (democracy).
One of our constitutions (federal) is short, the other (state) is long—like really long—but
both underscore liberty’s primacy right away. The federal Constitution, in the first sentence of the
Preamble, declares its mission to “secure the Blessings of Liberty.”4 The Texas Constitution
likewise wastes no time, stating up front in the Bill of Rights its paramount aim to recognize and
establish “the general, great and essential principles of liberty and free government.”5 The point is
unsubtle and undeniable: Liberty is not provided by government; liberty preexists government. It
is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.
* * *
Democracy is two wolves and a lamb voting on what to have for lunch.
Liberty is a well-armed lamb contesting the vote.6
This case concerns the timeless struggle between personal freedom and government power.
Do Texans live under a presumption of liberty or a presumption of restraint? The Texas
3
Press Release, Annenberg Pub. Policy Ctr. of the Univ. of Penn., Americans know surprisingly little about
their government, survey finds (Sept. 17, 2014), available at http://cdn.annenbergpublicpolicycenter.org/wp-
content/uploads/Civics-survey-press-release-09-17-2014-for-PR-Newswire.pdf (last visited June 25, 2015); see also
ANNENBERG PUB. POLICY CTR., CIVICS SURVEY APPENDIX at 2 (2014) (providing the methodology for the study),
http://www.annenbergpublicpolicycenter.org/wp-content/uploads/Civics-survey-appendix-09-17-14.pdf (last visited
June 25, 2015).
4
U.S. CONST. pmbl.
5
TEX. CONST. art. I.
6
Widely, if not assuredly, attributed to Benjamin Franklin.
2
Constitution confers power—but even more critically, it constrains power. What are the outer-
boundary limits on government actions that trample Texans’ constitutional right to earn an honest
living for themselves and their families? Some observers liken judges to baseball umpires, calling
legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the
constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on
occupational freedom? Are the most patently farcical and protectionist restrictions nigh
unchallengeable, or are there, in fact, judicially enforceable limits?
This case raises constitutional eyebrows because it asks building-block questions about
constitutional architecture—about how we as Texans govern ourselves and about the relationship
of the citizen to the State. This case concerns far more than whether Ashish Patel can pluck
unwanted hair with a strand of thread. This case is fundamentally about the American Dream and
the unalienable human right to pursue happiness without curtsying to government on bended knee.
It is about whether government can connive with rent-seeking factions to ration liberty
unrestrained, and whether judges must submissively uphold even the most risible encroachments.
The U.S. Supreme Court has repeatedly declared that the right to pursue a lawful calling
“free from unreasonable governmental interference” is guaranteed under the federal Constitution,7
and is “objectively, deeply rooted in this Nation’s history and tradition.”8 A pro-liberty
presumption is also hardwired into the Texas Constitution, which declares no citizen shall be
“deprived of life, liberty, property, [or] privileges or immunities”9—phrasing that indicates
citizens already possess these freedoms, and government cannot take them “except by the due
7
Greene v. McElroy, 360 U.S. 474, 492 (1959).
8
Washington v. Glucksberg, 521 U.S. 702, 703 (1997); see also 1 WILLIAM BLACKSTONE, COMMENTARIES
*427 (“At common law every man might use what trade he pleased . . . .”).
9
TEX. CONST. art. I, § 19 (emphasis added).
3
course of the law of the land.”10 Texans are thus presumptively free, and government must justify
its deprivations. So just how nonsensically can government stifle your constitutional right to put
your know-how and gumption to use in a gainful trade?
I recognize the potential benefits of licensing: protecting the public and preventing
charlatanism. I also recognize the proven benefits of constitutional constraints: protecting the
public and preventing collectivism. Invalidating irrational laws does not beckon a Dickensian
world of run-amok frauds and pretenders. The Court’s view is simple, and simply stated: Laws
that impinge your constitutionally protected right to earn an honest living must not be preposterous.
By contrast, the dissents see government power in the economic realm as infinitely elastic,
and thus limited government as entirely fictive, troubling since economic freedom is no less
vulnerable to majoritarian oppression than, say, religious freedom—perhaps more so. Exalting the
reflexive deference championed by Progressive theorists like Justice Oliver Wendell Holmes, Jr.,
the dissents would seemingly uphold even the most facially protectionist actions. Stranger still,
the principal dissent, while conceding that our state and federal Constitutions protect economic
liberty, quotes liberally from Justice Holmes, who rejected that the Fourteenth Amendment does
any such thing.11
10
Id.
11
The principal dissent dramatically—and predictably—accuses the Court of seeking to unleash the “Lochner
monster,” trying to resurrect Lochner v. New York, 198 U.S. 45 (1905), in which the U.S. Supreme Court invalidated
on federal “liberty of contract” grounds a state maximum-hours law for bakery workers. Post, at 12. (Hecht, C.J.,
dissenting). The Lochner bogeyman is a mirage but a ready broadside aimed at those who apply rational basis
rationally. As one constitutional law scholar noted a generation ago, “‘Lochnerizing’ has become so much an epithet
that the very use of the label may obscure attempts at understanding.” LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW 435 (1st ed. 1978).
I doubt the 3-0 panel of the U.S. Court of Appeals for the Fifth Circuit and Judge Sparks of the Western
District of Texas believed they were unleashing any monsters, or, scarier still, legislating from the bench!—when they
recently struck down state economic regulations on rational-basis grounds. See St. Joseph Abbey v. Castille, 712 F.3d
215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013) (invalidating the Louisiana “casket cartel”); Brantley v. Kuntz, No.
A-13-CA-872-SS, 2015 WL 75244 (W.D. Tex. Jan. 5, 2015) (invalidating Texas barber-school regulations as applied
to African hair braiding). Indeed, the Fifth Circuit in the casket cartel case dismissed the tired Lochner charge head-
on, denying that the “ghost of Lochner [was] lurking about.” St. Joseph Abbey, 712 F.3d at 227.
4
In any event, as Justice Holmes cruelly proved, dogmatic majoritarianism can exact a
ruthless price. In Buck v. Bell, the U.S. Supreme Court considered whether Carrie Buck, a Virginia
teenager raped and impregnated by her foster parents’ nephew, could be forcibly sterilized on
grounds that she was “feeble minded.”12 Speaking through Justice Holmes, the Court credulously
accepted at face value the government’s assertion that public welfare was a good-enough reason
to forbid the “manifestly unfit from continuing their kind.”13 Compulsory sterilization was
preferable to waiting to “execute degenerate offspring for crime, or to let them starve for their
imbecility.”14 Nothing—not even coercive eugenics—trumped judicial submissiveness to
whatever the majority decreed. Justice Holmes was unyielding, thundering one of the most
heartless, ignominious lines in Supreme Court history: “Three generations of imbeciles are
enough.”15
Justice Holmes later boasted to a friend that “[it] gave me pleasure, establishing the
constitutionality of a law permitting the sterilization of imbeciles.”16 Unquestioning deference
necessarily meant civil liberties were trampled, but Justice Holmes’s pro-statism minced no words:
“a law should be called good if it reflects the will of the dominant forces of the community even
12
274 U.S. 200, 205 (1927).
13
Id. at 207.
14
Id.
15
Id.
16
Letter from Oliver Wendell Holmes, Jr. to Lewis Einstein (May 19, 1927), in THE HOLMES-EINSTEIN
LETTERS: CORRESPONDENCE OF MR. JUSTICE HOLMES AND LEWIS EINSTEIN 1903–1935 267 (James Bishop Peabody,
ed., 1964).
5
if it will take us to hell.”17 In fact, said Justice Holmes, “if my fellow citizens want to go to Hell I
will help them. It’s my job.”18
Like the Court, I favor a less hard-hearted and more liberty-minded view for Texas, one
that sees the judiciary as James Madison did when he introduced the Bill of Rights, as an
“impenetrable bulwark” against imperious government.19 The Texas Constitution enshrines
structural principles meant to advance individual freedom; they are not there for mere show. Our
Framers opted for constitutional—that is, limited—government, meaning majorities don’t possess
an untrammeled right to trammel. The State would have us wield a rubber stamp rather than a
gavel, but a written constitution is mere meringue if courts rotely exalt majoritarianism over
constitutionalism, and thus forsake what Chief Justice Marshall called their “painful duty”—“to
say, that such an act was not the law of the land.”20
To be sure, the Capitol, not this Court, is the center of policymaking gravity, and judges
are lousy second-guessers of the other branches’ economic judgments. Lawmakers’ policy-setting
power is unrivaled—but it is not unlimited. Preeminence does not equal omnipotence. Politicians
decide if laws pass, but courts decide if those laws pass muster. Cases stretching back centuries
treat economic liberty as constitutionally protected—we crossed that Rubicon long ago—and there
is a fateful difference between active judges who defend rights and activist judges who concoct
17
KEN I. KERSCH, CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN
CONSTITUTIONAL LAW 151 (2004).
18
Letter from Oliver Wendell Holmes, Jr. to Harold Laski (Mar. 4, 1920), in 1 HOLMES-LASKI LETTERS: THE
CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI 1916–1935 249 (Mark DeWolfe Howe ed., 1953).
Holmesian deference was praised by turn-of-the-century Progressives who craved a pervasive regulatory state, and
got it via the New Deal-era U.S. Supreme Court.
19
See 1 ANNALS OF CONG. 439 (1789) (Joseph Gales ed., 1843).
20
McCulloch v. Maryland, 17 U.S. 316, 423 (1819).
6
rights. If judicial review means anything, it is that judicial restraint does not allow everything. The
rational-basis bar may be low, but it is not subterranean.
I support the Court’s “Don’t Thread on Me” approach: Threaders with no license are less
menacing than government with unlimited license.
I.
This case lays bare a spirited debate raging in legal circles, one that conjures legal
buzzwords and pejoratives galore: activism vs. restraint, deference vs. dereliction, adjudication vs.
abdication. The rhetoric at times seems overheated, but the temperature reflects the stakes. It
concerns the most elemental—if not elementary—question of American jurisprudence: the proper
role of the judiciary under the Constitution.
Judicial duty requires courts to act judicially by adjudicating, not politically by legislating.
So when is it proper for a court to strike down legislative or executive action as unconstitutional?
There are people of goodwill on both sides, and as this case demonstrates, it seems a legal
Rorschach test, where one person’s “judicial engagement” is another person’s “judicial
usurpation.”21
There are competing visions, to put it mildly, of the role judges should play in policing the
other branches, particularly when reviewing economic regulations. On one side is the Progressive
left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge
Robert Bork falls into this camp. A conservative luminary, Bork is heir to a Progressive luminary,
Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle
21
When it comes to the “judicial activism” label, some observers throw up their hands entirely and insist it
all turns on whose ox is gored. Justice Kennedy responds to charges of judicial activism this way: “An activist court
is a court that makes a decision you don’t like.” Hon. Anthony Kennedy, Address at Forum Club of the Palm Beaches,
Florida (May 14, 2010), available at http://www.c-span.org/video/?293521-1/justice-kennedy-remarks-supreme-
court.
7
of American government was not individual liberty but majoritarianism.22 As Judge Bork put it,
“majorities are entitled to rule, if they wish, simply because they are majorities.”23
The other side advocates “judicial engagement” whereby courts meaningfully enforce
constitutional boundaries, lest judicial restraint become judicial surrender.24 The pro-engagement
camp argues the judiciary should be less protective of Leviathan government and more protective
of individual freedom. Government exists, they contend, to secure pre-existing rights, as the
Declaration makes clear in its first two paragraphs.25 Thus, when it comes to judicial review of
laws burdening economic freedoms, courts should engage forthrightly, and not put a heavy, pro-
government thumb on the scale.
This much is clear: Spirited debates over judicial review have roiled America since the
Founding, from Marbury v. Madison,26 to Worcester v. Georgia27 (against which President
Jackson bellowed, “John Marshall has made his decision—now let him enforce it.”28), to the late
19th and early 20th centuries, when Progressives opposed judicial enforcement of economic
22
Judge Bork believed legislative majorities should wield near-absolute power, not just with economic policy
as favored by turn-of-the-century Progressives, but across the board, including the unenumerated rights enshrined
during the so-called “rights revolution” of the mid-20th century.
23
ROBERT H. BORK, THE TEMPTING OF AMERICA 139 (1990).
24
TIMOTHY SANDEFUR, THE RIGHT TO EARN A LIVING—ECONOMIC FREEDOM AND THE LAW (2010) (tracing
the history of the right to earn a living as it was understood by the Founders, through the Civil War Amendments, the
Progressive era, and current controversies over restrictive licensure laws); DAMON ROOT, OVERRULED—THE LONG
WAR FOR CONTROL OF THE U.S. SUPREME COURT (2014) (chronicling the conflicting visions of judicial review and
the degree to which courts should intervene to protect individual rights against government encroachment).
25
See THE DECLARATION OF INDEPENDENCE para. 1–2 (U.S. 1776).
26
5 U.S. 137 (1803).
27
31 U.S. 515 (1832).
28
HORACE H. HAGAN, EIGHT GREAT AMERICAN LAWYERS 79 (Fred B. Rothman & Co. 1987) (1923).
8
liberties, all the way to present-day battles over the Patient Protection and Affordable Care Act.29
In the 1920s and 1930s, liberals began backing judicial protection of noneconomic rights, while
resisting similar protection for property rights and other economic freedoms. The Progressives’
preference for judicial nonintervention was later embraced by post-New Deal conservatives like
Judge Bork. The judicial-review debate, both raucous and reasoned, is particularly pitched today
within the broader conservative legal movement. A prominent fault line has opened on the right
between traditional conservatives who champion majoritarianism and more liberty-minded
theorists who believe robust judicial protection of economic rights is indispensable to limited
government.30
When it comes to regulating the economy, Holmesian deference still dominates, as seen in
the Supreme Court’s landmark 2012 decision upholding the constitutionality of the Affordable
Care Act.31 During oral argument, the Solicitor General—echoing the dissenters in today’s case—
admonished that striking down President Obama’s signature health-care law would amount to
judicial activism that would “import Lochner-style substantive due process.”32 The Court, he
implored, “has a solemn obligation to respect the judgments of the democratically accountable
29
See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566 (2012); Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014); King v. Burwell, 759 F.3d 358 (4th Cir. 2014), affirmed, __ S. Ct. __ (2015).
30
Judge Bork favored both constitutional originalism and judicial deference to the democratic process, two
ideals that sometimes clash, producing what Professor Ilya Somin calls the “Borkean dilemma.” Ilya Somin, The
Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy, 80 U. OF CHI. L. REV.
DIALOGUE 243 (2013). Originalism sometimes requires judicial invalidation of laws that contradict the Constitution’s
original meaning. But striking down laws contradicts Bork’s preference for judicial minimalism. So while Judge Bork
favored judicial deference, he also criticized as “judicial activism” certain New Deal-era Court decisions that expanded
government control over the economy. BORK, supra note 23, at 56–57 (discussing Wickard v. Filburn, 317 U.S. 111
(1942), and lamenting that the Court’s “new, permissive attitude toward congressional power was a manifestation of
judicial activism”).
31
NFIB, 132 S. Ct. at 2566.
32
Transcript of Oral Argument at 30, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (No. 11-
398), available at http://www.archives.gov/research/court-records/supreme-court/11-398-tuesday.pdf.
9
branches of government.”33 A few days later, the President himself charged it would constitute
raw judicial activism if the Court took the “unprecedented, extraordinary step of overturning a law
that was passed by a strong majority of a democratically elected Congress,”34 adding, “We have
not seen a court overturn a law that was passed by Congress on an economic issue . . . for decades”
—“We’re going to the ’30s, pre-New Deal.”35 We know how the story ended. The Court upheld
the ACA on tax-power grounds, with Chief Justice Roberts famously stating, “It is not our job to
protect the people from the consequences of their political choices.”36
Today’s case arises under the Texas Constitution, over which we have final interpretive
authority, and nothing in its 60,000-plus words requires judges to turn a blind eye to transparent
rent-seeking that bends government power to private gain, thus robbing people of their innate
right—antecedent to government—to earn an honest living. Indeed, even if the Texas Due Course
of Law Clause mirrored perfectly the federal Due Process Clause, that in no way binds Texas
courts to cut-and-paste federal rational-basis jurisprudence that long post-dates enactment of our
own constitutional provision, one more inclined to freedom.
33
Id. at 110. The Chief Justice rejected the Lochner epithet and turned the tables, saying if the Court adopted
the government’s theory of the Commerce Clause, limited only to regulating insurance, it “would be going back to
Lochner”—with courts selectively allowing Congress to use its commerce power to impose a health-insurance
mandate but not an eat-your-broccoli mandate. Id. at 39.
34
Jeff Mason, Obama takes a shot at Supreme Court over healthcare, REUTERS, Apr. 2, 2012,
http://www.reuters.com/article/2012/04/02/us-obama-healthcare-idUSBRE8310WP20120402.
35
Greg Jaffe, Why does President Obama criticize the Supreme Court so much?, WASH. POST, June 20, 2015,
http://www.washingtonpost.com/politics/why-does-president-obama-criticize-the-supreme-court-so-
much/2015/06/20/b41667b4-1518-11e5-9ddc-e3353542100c_story.html.
36
NFIB, 132 S. Ct. at 2579. Two years earlier, however, in a political-speech case that involved a more
searching standard of review, the Chief Justice declared, “there is a difference between judicial restraint and judicial
abdication.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 375 (2010).
10
The principal dissent claims “the rational basis standard invokes objective reason as its
measure,” a contention difficult to take seriously.37 Legal fictions abound in the law, but the federal
“rational basis test” is something special; it is a misnomer, wrapped in an anomaly, inside a
contradiction. Its measure often seems less objective reason than subjective rationalization. The
dissent also says the fact that other states regulate threading provides “strong evidence that Texas’s
regulatory framework has a rational basis.”38 In my view, what happens in the Aloha State makes
not the slightest constitutional difference in the Lone Star State. Unconstitutional encroachments
reach across time zones and centuries. Just this week, in a case that took almost 80 years to bring,
the U.S. Supreme Court struck down as unconstitutional a New Deal-era, raisin-confiscation
regime that had spanned thirteen Presidents.39
The test adopted today bears a passing resemblance to “rational basis”-type wording, but
this test is rational basis with bite, demanding actual rationality, scrutinizing the law’s actual basis,
and applying an actual test.40 In my view, the principal dissent is unduly diffident, concluding the
37
Post, at 18. (Hecht, C.J., dissenting).
38
Id.
39
Horne v. Dep’t of Agric., No. 14-275, 2015 WL 2473384 (U.S. June 22, 2015).
40
While the dissenting Justices favor federal-style deference in economic matters, there is a notable
distinction between the Texas Constitution and the federal Constitution as interpreted by federal courts. The Texas
Constitution protects not just life, liberty, and property, but also “privileges or immunities,” language the U.S.
Supreme Court read out of the Fourteenth Amendment in the Slaughter-House Cases, 83 U.S. 36 (1872). Slaughter-
House involved special-interest favoritism masquerading as a public-health measure, a law granting a private
corporation an exclusive benefit at the expense of hundreds of local butchers. A few years earlier, when the Fourteenth
Amendment was adopted to counter the Black Codes and other oppressive state laws, the amendment’s author,
antislavery Representative John Bingham, confirmed the liberties it protected included “the right to work in an honest
calling and contribute by your toil in some sort to the support of your fellowmen and to be secure in the enjoyment of
the fruits of your toil.” CONG. GLOBE, 42D CONG., 1ST SESS., 86 app. (1871). The Fourteenth Amendment was a
response to a host of post-Civil War actions to oppress former slaves. Section One, drafted by Representative
Bingham, includes three clauses to safeguard individual rights: the Privileges or Immunities Clause, the Due Process
Clause, and the Equal Protection Clause. So what are an American citizen’s privileges and immunities? According to
perhaps the leading Fourteenth Amendment history, anti-slavery abuses spurred Congress to fortify all Americans’
civil rights against overbearing state governments, and to restore the Constitution’s original purpose as “a document
protecting liberty.” MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE
BILL OF RIGHTS 7 (1986). See also AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 166
(1998) (noting that the words “privileges,” “immunities,” “rights,” and “freedoms” are “roughly synonymous”). Citing
11
threading rules, while “excessive”41 and “obviously too much”42 are not “clearly arbitrary.”43 If
these rules are not arbitrary, then the definition of “arbitrary” is itself arbitrary. Without discussing
(or even citing) recent federal cases striking down nonsensical licensing rules under the supine
federal test,44 the dissents sever “rational” from “rational basis,” loading the dice—relentlessly—
in government’s favor.45 Their test is tantamount to no test at all; at most it is pass/fail, and
government never fails.46
Madison and other founders who used the words “rights,” “liberties,” “privileges,” and “immunities” interchangeably,
CURTIS, supra at 64–65, Curtis found similar usage in William Blackstone’s influential 1765 Commentaries on the
Laws of England, which described “privileges and immunities” as a blend of rights and liberties—although Curtis
notes that Blackstone “divided the rights and liberties of Englishmen into those ‘immunities’ that were the residuum
of natural liberties and those ‘privileges’ that society had provided in lieu of natural rights.” CURTIS, supra at 64.
Boiled down, privileges are state-given civil rights while immunities are God-given natural rights.
When the Court in Slaughter-House upheld 5-4 the Louisiana monopoly law, it stressed that the Privileges
or Immunities Clause only protected rights guaranteed by the United States and did not restrict state police power.
What’s the consensus view today of Slaughter-House? “Virtually no serious modern scholar—left, right, or center—
thinks [that Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.” Akhil R. Amar, Foreword: The
Document and the Doctrine, 114 HARV. L. REV. 26, 123 n.327 (2000).
The important point for today’s case is that Slaughter-House, while holding that the Fourteenth Amendment’s
Privileges or Immunities Clause offered no protection for individual rights against state officials, underscored that
states themselves possess power to protect their citizens’ privileges or immunities, including the right to pursue an
honest living against illegitimate state intrusion. As the Court correctly notes, the drafters of the Texas Constitution
were doubtless aware of this reservation of power to the states when they passed our own Privileges or Immunities
Clause just two years later in 1875. One question lurking in today’s case was whether this Court would do to our
Privileges or Immunities Clause what the U.S. Supreme Court did to the federal clause—nullify it by judicial fiat.
41
Post, at 11. (Hecht, C.J., dissenting).
42
Id.
43
Id. at 25.
44
See, e.g., St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013); Brantley
v. Kuntz, No. A-13-CA-872-SS, 2015 WL 75244 (W.D. Tex. Jan. 5, 2015).
45
The principal dissent cites our 1957 decision in State v. Richards, 301 S.W.2d 597 (Tex. 1957), the last
time we examined the constitutional protections due innocent property owners facing government seizure of their
property. It merits mention that at least three members of this Court believe the modern asset-forfeiture regime
“deserves attentive constitutional reconsideration, if not recalibration.” El-Ali v. State, 428 S.W.3d 824, 826 (Willett,
J., joined by Lehrmann, J., and Devine, J., dissenting to denial of pet.). And two others are open to reconsidering
Richards in a future case. Id. at 824 (Boyd, J., concurring, joined by Guzman, J.).
46
The dissents side with Justice Holmes’s oft-quoted Lochner dissent, even though Justice Holmes rejected
there what the dissents reaffirm here: The Constitution does protect economic liberty. Justice Holmes indeed seems
to exalt majority rule above all—except when he doesn’t. After he famously said, “I think that the word ‘liberty,’ in
the Fourteenth Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion,” he
added this sweeping caveat: “unless it can be said that a rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have been understood by the traditions of our people and our
12
law.” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). This proviso, according to Judge Robert
Bork, “spoiled it all” and prompted Bork to accuse Justice Holmes, a fellow judicial minimalist, of activism himself.
BORK, supra note 23, at 45. (“So Holmes, after all, did accept substantive due process, he merely disagreed . . . about
which principles were fundamental.”).
A quick word on Lochner. While the vote was 5-4, eight of nine Justices (all but Justice Holmes) agreed that
the Constitution protects economic liberty. And Lochner was not the first Supreme Court case to say so. That happened
eight years earlier in Allgeyer v. Louisiana, which defined “liberty” in the Fourteenth Amendment to include the
freedom “to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper,
necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” 165 U.S. 578,
589 (1897). As Justice Harlan acknowledged in the principal Lochner dissent, “there is a liberty of contract which
cannot be violated even under the sanction of direct legislative enactment.” 198 U.S. at 68 (Harlan, J., dissenting).
Government may not “unduly interfere with the right of the citizen to enter into contracts” or to “earn his livelihood
by any lawful calling, to pursue any livelihood or avocation.” Id. at 65.
Historical note: This is the first Justice Harlan, The Great Dissenter, not his grandson who served on the
Court in the mid-20th century. The first Justice Harlan, a strong proponent of natural rights, famously dissented in
Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Ed., 347 U.S. 483
(1954), and also in the Civil Rights Cases, 109 U.S. 3, 33 (1883) (Harlan, J., dissenting), that struck down federal anti-
discrimination laws. Some scholars believe that Justice Harlan’s dissent in Lochner had initially garnered a five-vote
majority, but someone switched his vote.
While Justice Harlan’s dissent, unlike Justice Holmes’s dissent, believed economic liberty was
constitutionally enshrined, he understood that states have a valid police-power interest in advancing public welfare.
Id. (“liberty of contract is subject to such regulations as the state may reasonably prescribe for the common good and
the well-being of society”). A law should be struck down only if there is “no real or substantial relation between the
means employed by the state and the end sought to be accomplished by its legislation.” Id. at 69. Justice Harlan would
have upheld the New York maximum-hours law, but he stressed the presumption of constitutionality can be rebutted
by evidence showing the restriction was arbitrary, unreasonable, or discriminatory. He simply found the government’s
health-and-safety justification plausible.
Importantly, there was no disagreement—none—between the Lochner majority and Justice Harlan’s dissent
over whether courts can legitimately scrutinize economic regulations. Nobody seriously disputes a state’s omnibus
power to safeguard its citizens’ health and safety via economic regulation. Of course states have broad, inherent police
power to enact general-welfare laws. Indeed, a few months after Lochner, the Court reaffirmed states’ “firmly
established” authority “to prescribe such regulations as may be reasonable, necessary and appropriate” to advance
“the general comfort, health, and general prosperity of the state.” Cal. Reduction Co. v. Sanitary Reduction Workers,
199 U.S. 306, 318 (1905). And just three years later, the Court upheld a maximum hours law for women. Muller v.
Oregon, 208 U.S. 412 (1908). In fact, the Lochner-era Court upheld many more economic regulations than it
overturned. Thomas Colby & Peter J. Smith, The Return of Lochner, 100 CORNELL L. REV. 527, 539–40 (2015). The
disagreement in Lochner was over who bears the burden—the government to prove legitimacy, or the challenger to
prove illegitimacy. Justice Harlan believed the latter: “when the validity of a statute is questioned, the burden of
proof . . . is upon those who assert it to be unconstitutional.” Lochner, 198 U.S. at 68 (citations omitted) (Harlan, J.,
dissenting). The Court today agrees, adopting an approach some might say tracks the principal Lochner dissent more
than the Lochner majority.
The core question is one of constitutional limitation. Should judges blindly accept government’s health-
and-safety rationale, or instead probe more deeply to ensure the aim is not suppressing competition to benefit
entrenched interests? A century and a half of pre-Lochner precedent allowed for judicial scrutiny of laws to ensure
the laws actually intend to serve the public rather than a narrow faction. See generally HOWARD GILLMAN, THE
CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993)
(discussing the origins of Lochner-era jurisprudence). Lochner focused on a narrow issue: whether the maximum-
hours law was truly intended to serve the general welfare or “other motives,” namely to advantage the bakers’ union
and unionized bakeries over small, non-union bakeries, many of which employed disfavored immigrants.
Interestingly, some of the Texas commentary immediately following Lochner was quite favorable, including
in the Dallas Morning News, which wrote “The right of contract is one of the most sacred rights of the freeman, and
any interference with such privilege by Legislatures or courts is essentially dangerous and vicious.” In Which the
Right of Contract is Upheld, DALLAS MORNING NEWS, Apr. 20, 1905, at 6.
A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter
of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated
13
II.
You take my house when you do take the prop /
That doth sustain my house; you take my life /
When you do take the means whereby I live.47
Government understandably wants to rid society of quacks, swindlers, and incompetents.
And licensing is one of government’s preferred tools, aiming to protect us from harm by
credentialing certain occupations and activities. You can’t practice medicine in Texas without
satisfying the Board of Medical Examiners. You can’t zoom down SH-130 outside Austin at 85
miles per hour (reportedly the highest speed limit in the Western Hemisphere) without a driver’s
license. Sensible rules undoubtedly boost our quality of life. And senseless rules undoubtedly
weaken our quality of life. Governments at every level—national, state, and local—wield
regulatory power, but not always with regulatory prudence, which critics say stymies innovation,
raises consumer prices,48 and impedes economic opportunity with little or no concomitant public
benefit.49 The academic literature has attained consensus: “a licensing restriction can only be
rights such as economic liberty. See supra note 24. Long story short: Legal orthodoxy about Lochner is evolving
among many leading constitutional theorists. See, e.g., Colby & Smith, supra at 527; DAVID E. BERNSTEIN,
REHABILITATING LOCHNER—DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2011).
47
WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 4 sc. 1.
48
Licensing restrictions impact price “along four dimensions” according to one recent study:
First, professional licensing can act as a barrier to entry into the profession. Second, licensing can
establish rules of practice, like advertising bans, that restrict competition. Third, state boards can
suppress interstate competition by recognizing licenses only from their own state. Finally, a
profession can prevent competition by broadening the definition of its practice, bringing more
potential competitors under its licensing scheme. These ‘scope-of-practice’ limitations tend to oust
low-cost competitors that operate at the fringes of an established profession.
Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust
Scrutiny?, 162 U. PA. L. REV. 1093, 1112 (2014) (footnotes and citations omitted).
49
Some government labor economists have concluded that “mandatory entry requirements of licensing
cannot necessarily be relied upon to raise the quality of services.” CAROLYN COX & SUSAN FOSTER, BUREAU OF ECON.,
FTC, THE COSTS AND BENEFITS OF OCCUPATIONAL REGULATION 21–27, 40 (1990), available at
http://www.ramblemuse.com/articles/cox_foster.pdf.
14
justified where it leads to better quality professional services—and for many restrictions, proof of
that enhanced quality is lacking.”50
It merits repeating: Judicial duty does not include second-guessing everyday policy
choices, however improvident. The question for judges is not whether a law is sensible but whether
it is constitutional. Does state “police power”—the inherent authority to enact general-welfare
legislation—ever go too far? Does a Texas Constitution inclined to limited government have
anything to say about government irrationally subjugating the livelihoods of Texans?
A.
The Republic of Texas regulated just one profession: doctors.51 In 1889, the State of Texas
added one more: dentists.52 Until the mid-20th century, occupational regulation in the Lone Star
State was rare (aside from the post-Prohibition alcohol industry)53 and was generally limited to
professions with a clear public-safety impact: nurses, pharmacists, optometrists, engineers, etc.
50
Edlin and Haw, supra note 48, at 1111–12 n.101 and accompanying text (citing numerous academic studies
questioning the putative benefits of licensure).
INTERIM REPORT TO THE 83RD TEX. LEG., 82D TEX. H. COMM. ON GOV’T EFFICIENCY & REFORM 57 (Jan.
51
2013), available at http://www.house.state.tx.us/_media/pdf/committees/reports/82interim/House-Committee-on-
Goverement-Efficiency-and-Refrom-Interim-Report.pdf.
52
Id.
53
Traditionally, only the medical and legal professions were subject to occupational licensing. J.R.R., II,
Note, Due Process Limitations on Occupational Licensing, 59 VA. L. REV. 1097, 1097 (1973). Later, as women,
minorities and immigrants—those lacking political power—entered the labor market, incumbent interests lobbied
politicians to erect barriers to thwart newcomers. For example, California called a constitutional convention in 1878
to combat what the Workingmen’s Party called the “Chinese Menace,” an influx of immigrant laborers from China.
The result, cheaper labor costs and thus cheaper goods and services, was intolerable to incumbent interests, who
imposed severe barriers to entry. One convention delegate confessed his goal forthrightly: “to hamper them in every
way that human ingenuity could invent.” SANDEFUR, supra note 24, at 146.
One such xenophobic law targeted Chinese launderers, who dominated San Francisco’s laundry market. The
U.S. Supreme Court said no. In Yick Wo v. Hopkins, the Court rejected efforts to persecute disfavored interests through
arbitrary permitting laws. 118 U.S. 356 (1886) (striking down San Francisco’s laundry-permitting ordinance, which,
while couched in public-safety rhetoric, plainly aimed to eliminate competition from Chinese operators). The Court
minced no words: “the very idea that one man may be compelled to hold his life, or the means of living . . . at the mere
will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”
Id. at 370.
15
Since World War II, however, the economy, both nationally and here in Texas, has
undergone a profound shift. States now assert licensing authority over an ever-increasing range of
occupations, particularly in the fast-growing service sector, which makes up “three-quarters of
gross domestic product and most job growth in the U.S.”54 During the 1950s, fewer than five
percent of American workers needed a state license.55 By 1970 it had doubled to 10 percent, and
by 2000 had doubled again.56 In 2006, nearly one-third of U.S. workers needed government
permission to do their job.57
This spike in licensing coincides with a decline in labor-union membership. “In fact,
[occupational licensing] has eclipsed unionization as the dominant organizing force of the U.S.
labor market.”58 Twice as many workers today are covered by licensing as by labor contracts.59
Moreover, the pervasiveness of licensing seems unrelated to whether a state is labeled “red” or
“blue” politically. Occupational regulation seems wholly disconnected from party-specific
ideology. In addition, most economic regulations are enacted not by legislatures answerable to
voters but by administrative bodies, often with scant oversight by elected officials.
54
Stephanie Simon, A License to Shampoo: Jobs Needing State Approval Rise, WALL ST. J., Feb. 7, 2011,
available at http://www.wsj.com/articles/SB10001424052748703445904576118030935929752.
55
Morris M. Kleiner & Alan B. Krueger, The Prevalence and Effects of Occupational Licensing, BRITISH J.
OF INDUSTRIAL RELATIONS 676, 678 (2010).
56
Id. at 679.
57
Id. at 678. See also MORRIS M. KLEINER, LICENSING OCCUPATIONS: ENSURING QUALITY OR RESTRICTING
COMPETITION? 1 (W.E. Upjohn Institute for Employment Research, 2006); Morris M. Kleiner, Occupational
Licensing: Protecting the Public Interest or Protectionism? 1 (W.E. Upjohn Institute for Employment Research,
Policy Paper No. 2011-009, 2011).
58
Edlin and Haw, supra note 48, at 1102. Today, licensing substitutes to some extent for unionization. See
Suzanne Hoppough, The New Unions, FORBES. Feb. 25, 2008, available at
http://www.forbes.com/part_forbes/2008/0225/100.html.
59
Alan B. Krueger, Do You Need a License to Earn a Living? You Might Be Surprised at the Answer, N.Y.
TIMES, Mar. 2, 2006, at C3.
16
The Lone Star State is not immune from licensure proliferation. An ever-growing number
of Texans must convince government of their fitness to ply their trade, spurring the House
Committee on Government Efficiency and Reform in 2013 to lament the kudzu-like spread of
licensure: “The proliferation of occupational licensing by the State of Texas can be to the detriment
of the very consumer the licensing is professing to protect.”60 Today the number of regulated
occupations exceeds 50061—about 2.7 million individuals and businesses,62 roughly one-third of
the Texas workforce,63 higher than the national average64—with many restrictions backed by
heavy fines and even jail time. Importantly, these statistics reflect state-only regulations; local and
federal rules raise the number of must-be-licensed workers higher still.65
60
INTERIM REPORT, supra note 51, at 58.
61
Id.
62
Id.
63
Id.
64
Id. (citing KLEINER, LICENSING OCCUPATIONS, supra note 57, at 12).
65
Kleiner & Krueger, supra note 55, at 678.
17
Unlike some states, Texas doesn’t yet require florists,66 interior designers,67 horse
massagers,68 ferret breeders,69 or fortune tellers70 to get state approval (though the soothsayers
would presumably see it coming). But the Lone Star State does require state approval to be a
shampoo apprentice.71 And to be an in-person auctioneer72 (though not to be an internet
auctioneer). And while you don’t need a license to be a bingo caller in Texas, you must be listed
on the Registry of Approved Bingo Workers in order to yell out numbers and letters.73
The “sum of good government,” Thomas Jefferson said in his first inaugural, was one
“which shall restrain men from injuring one another”—indisputably true—but “shall leave them
66
Louisiana is the only state in the country that requires licenses for florists. See LA. REV. STAT. ANN. §§
3:3804(A)(2), (3), (4), (C), (D), 3:3809 (2014). And until 2010, part of the licensing exam for aspiring florists included
a flower-arranging demonstration . . . judged by their future competition. See id. § 3:3807(B)(2) (2008), amended by
H.B. 1407, 2010 Leg., Reg. Sess. (La. 2010); see also Robert Travis Scott, Florist bill delivered to Gov. Bobby Jindal’s
desk, THE TIMES-PICAYUNE (June 16, 2010), available at
http://www.nola.com/politics/index.ssf/2010/06/florists_bill_delivered_to_gov.html.
67
See, e.g., FLA. STAT. ANN. §§ 481.213 (West 2015); LA. REV. STAT. ANN. § 37:3176 (West 2014); NEV.
REV. STAT. ANN. § 623.180(1) (West 2014); D.C. CODE § 47-2853.103 (2015).
68
In Arizona and Nebraska, you can’t be a horse masseuse without a license. See ARIZ. REV. STAT. ANN. §
32-2231(A)(4) (West 2015) (defining practice of veterinary medicine); 172 NEB. ADMIN. CODE § 182-004.02D (2015)
(eligibility for licensure as an Animal Therapist in Massage Therapy); see also ANIMAL MASSAGE LAWS BY STATE,
INT’L ASSOC. OF ANIMAL MASSAGE AND BODYWORK, http://www.iaamb.org/reference/state-laws-2013.html (last
visited June 25, 2015).
69
See, e.g., MASS. GEN. LAWS ANN. ch. 131 § 77(2) (West 2015) (“[N]o person shall possess a ferret for
breeding purposes without obtaining a license from the director. . . .”).
70
See id. ch. 140 § 185I(2) (“No person shall tell fortunes for money unless a license therefor has been issued
by the local licensing authority.”).
71
TEX. OCC. CODE § 1602.267. In Tennessee, a shampoo license has a 300 hour instructional requirement.
See Shampoo Technician, TN. DEP’T OF COMM. & INS. (last visited June 25, 2015),
https://www.tn.gov/commerce/article/cosmo-shampoo-technician. Alabama also requires a license to practice as a
“shampoo assistant.” See ALA. CODE § 34-7b-1(21) (2014). See also Simon, supra note 54 (surveying trade regulations
in several states, including shampooing regulations in Texas and barber regulations in California).
72
TEX. OCC. CODE § 1802.051(a).
73
16 TEX. ADMIN. CODE § 402.402(b).
18
otherwise free to regulate their own pursuits of industry and improvements.”74 Without question,
many licensure rules are justified by legitimate public health and safety concerns. And isolating
the point at which a rule becomes unconstitutionally “irrational” eludes mathematical precision.
But it is no more imprecise as when judges ascertain under the Constitution when a search is
“unreasonable”75 or bail “excessive”76 or cause “probable”77 or punishment “cruel and unusual.”78
Degree of difficulty aside, judges exist to be judgmental, hence the title.
The Texas Constitution has something to say when barriers to occupational freedom are
absurd or have less to do with fencing out incompetents than with fencing in incumbents. As Nobel
economist Milton Friedman observed, “the justification” for licensing is always to protect the
public, but “the reason” for licensing is shown by observing who pushes for it—usually those
representing not consumers but vested, already-licensed practitioners.79 In other words,
government’s coercive power is often wielded to quash newcomers. As two federal appellate
judges provocatively put it, “The practical effect of rational basis review of economic regulation
is the absence of any check on the group interests that all too often control the democratic process.
It allows the legislature free reign to subjugate the common good and individual liberty to the
electoral calculus of politicians, the whims of majorities, or the self-interest of factions.”80
74
President Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 8 THE WRITINGS OF THOMAS
JEFFERSON 3–4 (Henry A. Washington ed., 1854).
75
U.S. CONST. amend. IV.
76
Id. amend. VIII.
77
Id. amend. IV.
78
Id. amend. VIII.
79
MILTON FRIEDMAN & ROSE FRIEDMAN, FREE TO CHOOSE 240 (1980) (emphasis in original).
80
Hettinga v. United States, 677 F.3d 471, 482–83 (D.C. Cir. 2012) (Brown, J., joined by Sentelle, C.J.
concurring).
19
Summarizing: “Rational basis review means property is at the mercy of the pillagers. The
constitutional guarantee of liberty deserves more respect—a lot more.”81
Indeed, some fret that the focus of occupational regulation has morphed from protecting
the public from unqualified providers to protecting practitioners from unwanted competition.
Courts are increasingly asking whether societal benefits are being subordinated to the financial
benefits of those lucky enough to be licensed. The U.S. Court of Appeals for the Fifth Circuit
recently buried the so-called “casket cartel” in Louisiana, siding 3-0 with a group of woodworking
Benedictine monks who supported their monastery by selling handcrafted pine coffins. State-
licensed funeral directors found the competition unwelcome, and the monks were threatened with
a fine and jail time for breaching Louisiana law that said only state-licensed funeral directors could
sell “funeral merchandise.” In striking down the anticompetitive law, the Fifth Circuit explained:
“The great deference due state economic regulation does not demand judicial blindness to the
history of a challenged rule or to the context of its adoption nor does it require courts to accept
nonsensical explanations for regulation.”82 While acknowledging that Williamson v. Lee
Optical83—the Supreme Court’s authoritative treatment of rational-basis scrutiny—dictates
deference to state policymakers, the Fifth Circuit underscored that “Williamson insists upon a
rational basis,” adding, “a hypothetical rationale, even post hoc, cannot be fantasy” or impervious
to “evidence of irrationality.”84
81
Id. at 483.
82
St. Joseph Abbey v. Castille, 712 F.3d 215, 226 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013).
83
348 U.S. 483 (1955).
84
Id. at 223.
20
A similar casket-cartel law was invalidated in 2002 by the U.S. Court of Appeals for the
Sixth Circuit, the first federal appellate court since the New Deal to invalidate an economic
regulation for offending economic liberties secured by the Fourteenth Amendment.85 The court
found no sensible connection between the onerous licensing requirements and the law’s alleged
“health and safety” purpose. The court rejected the state’s predictable cries of “Lochnerism” and
said the alleged bases for the law came close to “striking us with ‘the force of a five-week-old,
unrefrigerated dead fish.’”86 The Sixth Circuit concluded it was ludicrous to see the law as anything
but “an attempt to prevent economic competition,”87 and that “protecting a discrete interest group
from economic competition is not a legitimate governmental purpose.”88 Granting special
economic favors to preferred interests may be a common government purpose—“the favored
85
Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002). The U.S. Supreme Court grounds economic liberty in
the Fourteenth Amendment, but as discussed above, it does so within the judicially invented concept of “substantive
due process” rather than within the textual Privileges or Immunities Clause of the Fourteenth Amendment. The Clause,
drafted by the Committee on Reconstruction, was specifically enacted to relieve rigid constraints on economic liberty,
including post-Civil War licensing systems that hamstrung the economic activities of freed slaves. See generally
HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW 319 (1982). Constitutionalizing well-
understood rights, including the economic rights protected by the Civil Rights Act of 1866—making freedom actually
meaningful—was the overriding point. And these protected economic rights included the right to practice a chosen
trade. Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1250–51 (1998).
As noted above, the Clause’s abolitionist author explained that it was intended to safeguard “the liberty . . . to work
in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen,
and to be secure in the enjoyment of the fruits of your toil.” CONG. GLOBE, 42D CONG., 1ST SESS., 86 app. (1871). The
Fourteenth Amendment’s legislative record is replete with indications that “privileges or immunities” encompassed
the right to earn a living free from unreasonable government intrusion. Id.
As explained above, the U.S. Supreme Court’s nullification of the federal Privileges or Immunities Clause in
Slaughter-House began the process of undermining the amendment’s civil-rights protections for black Americans in
the South. See, e.g., United States v. Cruikshank, 92 U.S. 542 (1875); Plessy v. Ferguson, 163 U.S. 537 (1896)
overruled by Brown v. Bd. of Ed., 347 U.S. 483 (1954). Slaughter-House has been accused of “strangling the privileges
or immunities clause in its crib.” Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J.
1193, 1259 (1992). Worse, it emboldened legislatures to enact notorious Jim Crow laws. Scholars across the political
spectrum agree that Slaughter-House reflects a deeply flawed understanding of constitutional history.
86
Craigmiles, 312 F.3d at 225 (quoting United States v. Searan, 259 F.3d 434, 447 (6th Cir. 2001)).
87
Id.
88
Id. at 224.
21
pastime of state and local governments,” as the Tenth Circuit put it89—but common doesn’t mean
constitutional. Merely asserting—and accepting—“Because government says so” is incompatible
with individual freedom. Courts need not be contortionists, ignoring obvious absurdities to
contrive imaginary justifications for laws designed to favor politically connected citizens at the
expense of others.
More and more, courts—even comedians90—are scrutinizing the entry barriers imposed by
occupational regulations. Earlier this year, a federal district court in Austin rejected the state’s
attempt to force a teacher of African hair braiding to meet state barber-school regulations.91 Isis
Brantley was vexed as to why her Institute of Ancestral Braiding needed a 2,000-square foot
facility, 10 barber chairs, and 5 sinks to teach people how to twist and braid hair.92 The court
examined means and ends and agreed the requirements were senseless. 93 Why require sinks, for
example, when braiders don’t wash hair, and state law allows braiders to use just hand sanitizer?94
The court refused to accept blindly the state’s purported justifications. It conducted an actual
judicial inquiry and observed the state was trying to “shoehorn two unlike professions ‘into a
single, identical mold, by treating hair braiders—who perform a very distinct set of services—as
89
Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).
90
A few years ago, Jon Stewart’s The Daily Show lampooned state efforts to regulate hair braiding. See The
Daily Show (Comedy Central television broadcast June 3, 2004), available at
http://thedailyshow.cc.com/videos/adygsa/the-braidy-bill.
91
See Brantley v. Kuntz, No. A-13-CA-872-SS, 2015 WL 75244, *8 (W.D. Tex. Jan. 5, 2015) (“[T]he
regulatory scheme . . . exclude[s] Plaintiffs from the market absent a rational connection . . .”).
92
See id. at *2.
93
See id. at *7.
94
See id. at *6. The Oregonian recently profiled a hair braider in Oregon, where braiders must have a
cosmetology license, who daily crosses the border into Washington, where braiders are exempt. Most of her clients
cross the border, too. The options for customers are simple: pay the cartel price or find an illicit braider. See Anna
Griffin, Braiding African American Hair at center of overregulation battle in Oregon, THE OREGONIAN (Aug. 11,
2012), http://www.oregonlive.com/politics/index.ssf/2012/08/braiding_african_american_hair.html.
22
if they were [barbers].’”95 The court stressed “the logical disconnect inherent in the scheme which
contemplates the existence of hair-braiding schools but makes it prohibitively difficult for a hair-
braiding school to enter the market.”96 The court concluded the rules lacked any “rational
relationship to any legitimate government interest”97 and were thus unconstitutional under the
Fourteenth Amendment.98
Tellingly, the state declined to appeal, saying it would instead launch “a comprehensive
review of the barber and cosmetology statutes” and “work with [the] legislative oversight
committees on proposals to remove unnecessary regulatory burdens for Texas businesses and
entrepreneurs.”99 Legislative response was swift—and unanimous—and Governor Abbott 15 days
ago signed House Bill 2717 to deregulate hair braiding.100 But as with many matters (e.g., public
school finance), it took a judicial ruling on constitutionality to spark legislative action.
The U.S Supreme Court itself recently examined how states regulate professions,
scrutinizing whether licensing boards dominated by industry incumbents are rightly focused on
weeding out scammers and inept practitioners or wrongly focused on weeding out newcomers.101
95
Brantley, 2015 WL 75244, at *7 (quoting Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1215 (D. Utah 2012))
(quoting Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1215 (D. Utah 2012)).
96
Id.
97
Id. at *8.
98
Id.
99
Angela Morris, Braider Wins Against State Barber Regulations, TEXAS LAWYER, Jan. 19, 2015, available
at http://www.texaslawyer.com/id=1202715320677/Braider-Wins-Against-State-Barber-Regulations.
100
Act of May 22, 2015, 84th Leg., R.S., ch. 413, § 2, 2015 Tex. Sess. Law Serv. 2717 (to be codified at Tex.
Occ. Code § 1601.003(2)(E)), available at
http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/HB02717F.pdf#navpanes=0.
101
See Morris M. Kleiner, Occupational Licensing, 14 J. ECON. PERSPECTIVES 189, 191 (2000) (describing
the composition of state licensing boards).
23
Earlier this year in North Carolina State Board of Dental Examiners v. FTC,102 the High Court
held that a state dental board controlled by “active market participants” could be sued under federal
antitrust law for cracking down on non-dentists who were offering teeth-whitening treatments.103
The decision brought a smile to licensure critics who had long argued that self-regulation invites
self-dealing and that state licensing boards prone to regulatory capture deserved no immunity for
Sherman Act104 abuses. Ever since Parker v. Brown 80-plus years ago,105 such boards were deemed
outside the Act’s ban on cartels because, unlike traditional cartels, they were sanctioned by the
state.106 No more. Parker no longer insulates regulated regulators regulating to anticompetitive
effect. Licensing boards comprised of private competitors will face Sherman Act liability if they
flex power to smother aspiring entrepreneurs.107
B.
As today’s case shows, the Texas occupational licensure regime, predominantly impeding
Texans of modest means, can seem a hodge-podge of disjointed, logic-defying irrationalities,
where the burdens imposed seem almost farcical, forcing many lower-income Texans to face a
choice: submit to illogical bureaucracy or operate an illegal business? Licensure absurdities
102
135 S. Ct. 1101 (2015).
103
Id. at 1110.
104
See generally 15 U.S.C. §§ 1–7 (2004).
105
317 U.S. 341 (1943). See also Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97,
105 (stating two standards for Parker state action immunity: (1) state articulation of its purpose to displace
competition, and (2) active state supervision).
106
See Parker, 317 U.S. at 351 (“The Sherman Act makes no mention of the state as such, and gives no hint
that it was intended to restrain state action or official action directed by a state.”).
See N.C. State Bd. of Dental Exam’rs, 135 S. Ct. at 1110–11 (“But while the Sherman Act confers
107
immunity on the States’ own anticompetitive policies out of respect for federalism, it does not always confer immunity
where, as here, a State delegates control over a market to a non-sovereign actor. . . . For purposes of Parker, a
nonsovereign actor is one whose conduct does not automatically qualify as that of the sovereign State itself.”) (citation
omitted).
24
become apparent when you compare the wildly disparate education/experience burdens visited on
various professions. The disconnect between the strictness of some licensing rules and their alleged
public-welfare rationale is patently bizarre:
Emergency Medical Technicians. EMTs are entrusted with life-and-death
decisions. But in Texas, entry-level EMTs need only 140 hours of training before
rendering life-saving aid.108 Contrast that with the radically more onerous
education/experience requirements for barbers (300 hours),109 massage therapists
(500 hours),110 manicurists (600 hours),111 estheticians (750 hours),112 and full-
service cosmetologists (1,500 hours).113
Backflow Prevention Assembly Testers. Of the number of states and the District of
Columbia that require licenses for backflow prevention assembly testers, the Lone
Star State is the only place where it takes more than two weeks of
training/experience—way more. Fifty times more. Not two weeks but two years.114
State licensing impacts our lives from head to toe. Literally. Starting at the top, where does
hair end and the beard begin? Texas law has been quite finicky on the matter, leading Texas barbers
and cosmetologists to spend years splitting legal hairs and clogging Texas courts. Both of these
state-licensed professionals may cut hair, but until 2013 only barbers, not cosmetologists, had state
108
25 TEX. ADMIN. CODE § 157.32(c)(2)(B).
109
TEX. OCC. CODE § 1601.253(c)(2).
110
Id. § 455.156(b)(1).
111
Id. § 1601.257(b)(3).
112
Id. § 1602.257(b)(3).
113
Id. § 1602.254(b)(3). A Class A Barber who completes an additional 300 hours of instruction in
cosmetology—a total of 600 hours of training—may also be eligible to become a full-service cosmetologist.
Id. § 1602.254(c).
114
See TEX. HEALTH & SAFETY CODE § 341.034(c); 30 TEX. ADMIN. CODE § 30.60. Although one can begin
working as a backflow prevention assembly tester with only 40 hours of instruction in Texas, obtaining a license
requires two years of work experience. See, e.g., 30 TEX. ADMIN. CODE § 30.60(4)–(5). In contrast, other states do not
require pre-licensure work experience in addition to knowledge-based examinations. See IDAHO ADMIN CODE ANN.
§ r.24.05.01.335 (2014) (requirements for a backflow assembly tester license); MINN. STAT. § 326B.42 (West 2015)
(defining “backflow prevention tester” as an individual qualified by training prescribed by the Plumbing Board);
MINN. DEP’T OF LABOR & INDUS., Minnesota backflow agreement 2013, ASSE INT’L Ltr. (Oct. 15, 2013) (determining
the requirements for certification), available at http://www.dli.mn.gov/CCLD/PDF/pe_agree.pdf; MO. CODE REGS.
Tit. 10, § 60-11.030 (2015) (providing for certification upon completion of a written exam); UTAH ADMIN. CODE r.
309-305-5 (2015) (providing for certification upon completion of written and practical examinations).
25
permission to wield a razor blade to shave facial hair. Before 2013, if you wanted your beard
shaved, you had to visit a barber (probably a man) and not a cosmetologist (probably a woman).115
And what is a “beard” anyway? Why, it’s the facial hair below the “line of demarcation” as defined
in the Administrative Code.116 Even the Attorney General of Texas got all shook up wondering
whether Elvis’s famous sideburns “were hair which a cosmetologist might trim, or a partial beard
which could be serviced only [by] a barber.”117
At the other bodily extreme, what’s the demarcation between the foot (which podiatrists
can treat) and the ankle (which they can’t)? These are high-stakes disputes, and sometimes the
licensing bodies have jurisdictional spats with each other, usually over “scope of practice” issues.
So where does the foot end and the ankle begin? In 2010, this Court ended a nearly ten-year legal
battle between, in one corner, the Texas Medical Association and Texas Orthopedic Association,
and in the other, the Texas State Board of Podiatric Medical Examiners and Texas Podiatric
Medical Association.118
115
Prior to the 1960s and 1970s, rigid state laws codified sexual stereotypes that distinguished male barbers
and barbershops from female cosmetologists (or beauticians) and beauty parlors. Unisex hair salons became in vogue
in the late 1960s through the 1970s as courts invalidated these state statutes under the equal protection clause of the
Fourteenth Amendment.
Today, although there is hardly a distinction between most barber and cosmetology services, there is plenty
of opportunity for overzealous regulators to tag unsuspecting shop owners with “gotcha” fines. See, e.g., Tex. Dep’t
of Licensing & Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV, 2010 WL 2354064 (Tex. App.—Austin
June 10, 2010, no pet.) (discussing whether a cosmetologist’s use of a safety razor to remove hair from a customer’s
neck or face violates state law controlling what services can be provided exclusively by barbers).
116
16 TEX. ADMIN. CODE §§ 82.10 (8), (23).
117
Tex. Att’y Gen. Op. No. JC-0211 (2000) (“We think it likely that most observers would consider the
sideburns worn by the late Elvis Presley at the time of his early success in 1956 as part of his hair. On the other hand,
whether the muttonchops which adorned his face at the time of his death were hair which a cosmetologist might trim,
or a partial beard which could be serviced only a barber, is a question which in the absence of any articulated standard
might well present difficulties to a cosmetologist who wished to remain within his or her licensed practice.”).
118
Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Exam’rs, 254 S.W.3d 714 (Tex. App—Austin
2008, pet. denied) (invalidating the Texas State Board of Podiatric Medical Examiners rule defining the word “foot”).
26
According to the academic literature, the real-world effects of steroidal regulation are
everywhere: increased consumer cost; decreased consumer choice; increased practitioner income;
decreased practitioner mobility119—plus shrunken economic prospects for lower income, would-
be entrepreneurs.120 Thomas Edison, with little formal schooling, likely could not be a licensed
engineer today, nor could Frank Lloyd Wright be a licensed architect.121
III.
No man is allowed to be a judge in his own cause, because his interest would
certainly bias his judgment, and, not improbably, corrupt his integrity.122
Anyone acquainted with human nature understands, as Madison did, that when people, or
branches of government, are free to judge their own actions, nothing is prohibited. The Court
recognizes that Texans possess a basic liberty under Article I, Section 19 to earn a living. And to
safeguard that guarantee, the Court adopts a test allergic to nonsensical government encroachment.
I prefer authentic judicial scrutiny to a rubber-stamp exercise that stacks the legal deck in
government’s favor.
My views are simply stated:
119
See e.g., SANDEFUR, supra note 24, at 24.
120
Id. (noting that monopoly laws and restrictive licensing schemes were “often used to give economic favors
to politically influential lobbyists . . .”).
121
One powerful way regulations handicap innovation is through sweeping, inflexible, one-size-fits-all
measures that crowd out novel services. For example, in the recent teeth-whitening case at the U.S. Supreme Court,
the state dental board defined dentistry broadly to include teeth whitening. N.C. State Bd. of Dental Exam’rs, 135 S.
Ct. 1101, 1120 (2015). In today’s case, eyebrow threaders want to thread eyebrows—and only want to thread
eyebrows—but Texas defines the regulated trade of cosmetology so broadly, and irrationally, that threaders must take
pricey and time-consuming classes to learn, well, nothing about threading but lots about non-threading. These Texans
aim to provide a single service, but the government—exercising maximum will but minimum judgment—shackles
creativity and innovation by lumping threading in with licensed, full-fledged cosmetology and requiring people to
spend untold hours and dollars learning wholly irrelevant cosmetology techniques. The result, disproportionately
affecting the poor, is the so-called “Cadillac effect”: would-be entrepreneurs squashed by exorbitant start-up costs,
and would-be consumers forced to either (1) pay a higher-than-necessary price (a Cadillac) when all they want to buy
is a discrete service at a lower price (a Kia), or (2) go without, or perhaps try to do it themselves.
122
THE FEDERALIST No. 10, at 79 (James Madison) (Clinton Rossiter ed., 1961).
27
1. The economic-liberty test under Article I, Section 19 of the Texas Constitution is
more searching than the minimalist test under the Fourteenth Amendment to the
United States Constitution.
Even under the lenient rational-basis test—“the most deferential of the standards of
review”123—the would-be threaders should win this case. It is hard to imagine anything more
irrational than forcing people to spend thousands of dollars and hundreds of hours on classes that
teach everything they don’t do but nothing they actually do. Not one of the 750 required hours of
cosmetology covers eyebrow threading. Government-mandated barriers to employment should
actually bear some meaningful relationship to reality.
It is instructive to consider the U.S. Supreme Court’s first occupational licensing case, from
1889. In Dent v. West Virginia124—which has never been overruled and is still cited
approvingly125—the Court upheld a physician-licensing regime, calling it a way to protect “the
general welfare of [the] people” and “secure them against the consequences of ignorance and
incapacity, as well as of deception and fraud.”126 But the Court cautioned that constitutional limits
exist. Government is free to mandate requirements “appropriate to the calling or profession,” but
not those that “have no relation to such calling or profession.”127 Why? Because that would
“deprive one of his right to pursue a lawful vocation.”128 Restrictions must have a reasonable
connection to the person’s fitness or capacity. That explains the High Court’s 1957 ruling in
123
BLACK’S LAW DICTIONARY 1453 (10th ed. 2009).
124
129 U.S. 114 (1889).
125
See, e.g., Conn v. Gabbert, 526 U.S. 286, 292 (1999) (citing Dent with approval but declining to extend).
126
Dent, 129 U.S. at 122.
127
Id.
128
Id.
28
Schware v. Board of Bar Examiners,129 the only time the Court has struck down a licensing
restriction under rational-basis review. In Schware, the Court invalidated New Mexico’s attempt
to bar a Communist Party member from practicing law: “any qualification must have a rational
connection with the applicant’s fitness or capacity to practice.”130
The federal rational-basis requirement debuted amid Depression-era upheaval in 1934,
when the Court in Nebbia v. New York,131 criminalizing the sale of milk below the government-
approved price, held “a State is free to adopt whatever economic policy may reasonably be deemed
to promote public welfare,”132 so long as it is not “unreasonable or arbitrary.”133 Nebbia was a
constitutional bombshell, and its abandonment of strong judicial protection for economic liberty
presaged a vast expansion of government power. Twenty years later came the Court’s authoritative
guidance on Fourteenth Amendment review of economic regulation: Williamson v. Lee Optical.134
In Lee Optical, the Court, while implicitly recognizing a liberty right to pursue one’s chosen
occupation, held that economic regulation—here, forbidding opticians from putting old lenses in
new frames—would be upheld if the court could conjure out of thin air any hypothetical reason
why lawmakers might have enacted the law.135 Uncertainty has persisted for decades, partly
because, as the Court acknowledges, “Our cases have not elaborated on the standards for
129
353 U.S. 232, 238–39 (1957) (holding that former communist ties are not sufficiently related to the
practice of law to warrant disbarment).
130
Id. at 239.
131
291 U.S. at 530 (1934).
132
Id. at 537.
133
Id. at 530.
134
348 U.S. 483 (1955).
135
Id. at 487–89.
29
determining what constitutes a ‘legitimate government interest.’”136 Some federal circuits,
including the Fifth, have held it is improper to regulate solely to insulate incumbent business from
competition.137 But with a few notable exceptions, like the recent “casket cartel”138 and African
hair-braiding cases,139 rational-basis review under the Fourteenth Amendment is largely a judicial
shrug.
Indeed, federal-style scrutiny is quite unscrutinizing, with many burdens acing the rational-
basis test while flunking the straight-face test. As the U.S. Supreme Court held almost 80 years
ago in United States v. Carolene Products,140 government has no obligation to produce evidence
to sustain the rationality of its action; rather, “the existence of facts supporting the legislative
judgment is to be presumed.”141 Courts “never require a legislature to articulate its reasons for
enacting a statute” and will uphold a law “if there is any reasonably conceivable state of facts that
could provide a rational basis” for it.142 Indeed, it is “entirely irrelevant” whether the purported
justification for a burdensome law “actually motivated the legislature.”143 Challengers must negate
136
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 (1987). Indeed, the label “rational basis” is misleading
because the federal test doesn’t require the law to actually make sense. Rather, it asks whether a lawmaker maybe,
possibly, conceivably, plausibly, imaginably, hypothetically might have thought it was a good idea. It doesn’t even
matter if lawmakers actually intended to violate the Constitution. The law will be upheld so long as a court can conjure
any legitimate public purpose for the law. One complication: The U.S. Supreme Court has yet to articulate with
precision what constitutes a “legitimate” government interest. But how can one make sense of the “legitimate state
interest” requirement unless and until the Court explains what purposes are and are not acceptable? Answering the
question would necessarily require the Court to state straightforwardly that some things are illegitimate state interests.
137
See, e.g., Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002); Merrifield v. Lockyer, 547 F.3d 978 (9th Cir.
2008); St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013).
138
See St. Joseph Abbey, 712 F.3d at 215.
139
Brantley v. Kuntz, No. A-13-CA-872-SS, 2015 WL 75244 (W.D. Tex. Jan. 5, 2015).
140
304 U.S.152 (1938).
141
Id. at 152.
142
FCC v. Beach Commc’ns, Inc., 508 U.S. 313, 315 (1993).
143
Id. at 307, 315.
30
every conceivable basis that might support it,144 and judges are exhorted to invent a colorable
justification if the one articulated by the government falls short. All this explains why critics charge
the test is less “rational basis” than “rationalize a basis.”
The dissents would subordinate concrete scrutiny to conjectural scrutiny that grants a nigh-
irrebuttable presumption of constitutionality. It is elastic review where any conceivable,
theoretical, imaginary justification suffices. In my view, Texas judges should instead conduct a
genuine search for truth—as they do routinely in countless other constitutional areas—asking
“What is government actually up to?” When constitutional rights are imperiled, Texans deserve
actual scrutiny of actual assertions with actual evidence.
 Should Texas courts reflexively accept disingenuous or smokescreen
explanations for the government’s actions? No.
 Is government allowed to prevail with purely illusory or pretextual justifications
for a challenged law? No.
 Must citizens negate even purely hypothetical justifications for the
government’s infringement of liberty? No.
 Are Texas courts obliged to jettison their truth-seeking duty of neutrality and
help government contrive post hoc justifications? No.
Texas judges should discern whether government is seeking a constitutionally valid end
using constitutionally permissible means. And they should do so based on real-world facts and
without helping government invent after-the-fact rationalizations. I believe the Texas Constitution
requires an earnest search for truth, not the turn-a-blind-eye approach that prevails under the
federal Constitution.145
144
Id. at 314–15.
145
As mentioned above, the Texas Constitution has its own “privileges or immunities”-like language, and
while Slaughter-House nullified federal protection, the U.S. Supreme Court declared that states were proper guardians
of the “privileges or immunities” of state citizenship, including the right to pursue a calling. Slaughter-House Cases,
83 U.S. 36, 77–78 (1873). Texas did exactly that in its 1875 Constitution, acting quickly on the Court’s statement that
31
2. The Texas Constitution narrows the difference in judicial protection given to
“fundamental” rights (like speech or religion) and so-called “non-fundamental”
rights (like the right to earn a living).
The jurisprudential fact of the matter is that courts are more protective of some
constitutional guarantees than others. One bedrock feature of 20th-century jurisprudence, starting
with the U.S. Supreme Court’s New Deal-era decisions, was to relegate economic rights to a more
junior-varsity echelon of constitutional protection than “fundamental” rights. Nothing in the
federal or Texas Constitutions requires treating certain rights as “fundamental” and devaluing
others as “non-fundamental” and applying different levels of judicial scrutiny, but it is what it is:
Economic liberty gets less constitutional protection than other constitutional rights.
This is not opinion but irrefutable, demonstrable fact. Ever since what is universally known
as “the most famous footnote in constitutional law”146—footnote four in Carolene Products in
1938147—the U.S. Supreme Court has applied varying tiers of scrutiny to constitutional challenges.
Simplified, the Court divides constitutional rights into two discrete categories: fundamental and
non-fundamental. Upshot: Your favored First Amendment speech rights receive stronger judicial
protection than your disfavored Fifth Amendment property rights. The fragmentation is less logical
than rhetorical, and is anchored less in principle than in power. Under the post-New Deal picking
and choosing, speech gets preferred status while economic liberty is treated as “a poor
relation”148—despite the Due Process Clause’s explicit inclusion of “property” (and given the High
protection of individuals’ non-federal privileges and immunities was a state concern. As the Court notes, however, the
plaintiffs did not raise a separate privileges or immunities challenge.
146
See, e.g., Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 465 S.
TEX. L. REV. 163, 165 (2004).
147
304 U.S. 144, 152 n.4 (1938) (creating a dichotomy between laws that regulate economic affairs, which
get deferential judicial review, and laws that curtail important personal liberties or that target “discrete and insular
minorities,” which get more searching judicial scrutiny).
148
Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
32
Court’s nullification of the Privilege or Immunities Clause in Slaughter-House). Speech rights get
no-nonsense “strict scrutiny” to ensure government is behaving itself while property rights get
servile, pro-government treatment.
For example, when courts decide an Establishment Clause challenge under the First
Amendment, they normally defer to a State’s asserted secular purpose. But such deference is not
blind. Courts don’t simply take government’s word for it; they are careful to ensure that a
“statement of such purpose be sincere and not a sham.”149 Same with gender classifications. The
Court in 1996 struck down Virginia’s exclusion of women from Virginia Military Institute,
explaining that government’s asserted justification must be “genuine,” as opposed to one that’s
been “hypothesized or invented post hoc in response to litigation.”150
Digital privacy under the Fourth Amendment is another constitutional area where the U.S.
Supreme Court requires real-world evidence rather than putting a pro-government thumb on the
scale. Recently, in the landmark case Riley v. California,151 prosecutors, citing concerns for officer
safety and preserving evidence, insisted they did not need a warrant before searching an arrested
suspect’s smartphone. The Court unanimously rejected the prosecutors’ excuses, making clear that
justifications for burdening constitutional rights must be concrete, non-imaginary concerns “based
on actual experience.”152 The Court held there was no real and documented evidence that
warrantless searches were necessary to protect officers.153 As for evidence destruction, the Court
149
Edwards v. Aguillard, 482 U.S. 578, 586–87 (1987).
150
Unites States v. Virginia, 518 U.S. 515, 533 (1996).
151
134 S. Ct. 2473 (2014).
152
Id. at 2485.
153
Id. at 2494.
33
was likewise unmoved, noting again the absence of actual evidence to back the State’s assertion,
adding that in any event, law enforcement has “more targeted ways to address those concerns.”154
Some constitutional rights fall somewhere in between, like “commercial speech,” not
because the Constitution draws that distinction but because judges do. Commercial speech—
advertisements and other business-related speech—is a hybrid under U.S. Supreme Court
precedent, involving speech rights (protected vigorously) and economic rights (protected not so
vigorously).155 Imagine a law that makes it illegal to advertise Axe Body Spray because lawmakers
believe it endangers the public. This law plainly burdens speech, but it burdens economic speech,
which receives less judicial protection than, say, political speech.156 Nonetheless, commercial
speech restrictions still get meaningful judicial review. Courts would examine three factors: (1)
whether government has a “substantial interest” in burdening the speech; (2) whether the
restriction actually furthers that interest; and (3) whether there are less restrictive ways to achieve
the stated goal so that speech is restricted as little as necessary.157 Government bears the burden of
proof, and the law receives a serious judicial pat-down, including whether it was honestly driven
by a desire to serve public interests or was merely a pretext to serve private interests. Now imagine
a different law, one banning the sale of Axe Body Spray. With this law, the legal deck is shuffled
differently, and a judge would apply a less-rigorous test because the law targets not commercial
speech but commercial activity, a so-called non-fundamental right. Because this law focuses on
154
Id. at 2487.
155
The Court first recognized the right “to follow any lawful calling, business, or profession he may choose”
in Dent v. West Virginia, 129 U.S. 114, 121 (1889). For 126 years the Court has reaffirmed that right, even though
judicial protection of it has waned. See supra notes 124–29 and accompanying text.
156
Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2672 (2011) (“Indeed the government’s legitimate interest in
protecting consumers from ‘commercial harms’ explains ‘why commercial speech can be subject to greater
governmental regulation than noncommercial speech.’”) (citations omitted).
157
Id. at 2672–84.
34
economic activity, government wouldn’t have to prove its health claims, or show that less
restrictive means were available, or convince a judge that the law’s purported purpose was a pretext
to mask its true purpose.158
But “economic” and “noneconomic” rights indisputably overlap. As the U.S. Supreme
Court has recognized, freedom of speech would be meaningless if government banned bloggers
from owning computers. Economic freedom is indispensable to enjoying other freedoms—for
example, buying a Facebook ad to boost your political campaign. A decade (and three days) ago
in Kelo v. City of New London,159 the landmark takings case that prompted a massive national
backlash,160 Justice Thomas’s dissent lamented the bias against economic rights this way:
“Something has gone seriously awry with this Court’s interpretation of the Constitution. Though
citizens are safe from the government in their homes, the homes themselves are not.”161
Kelo is indeed illustrative, as the rational-basis test applies in eminent-domain cases, too,
notwithstanding the assurance in footnote four of Carolene Products that alleged violations of the
Bill of Rights deserve heightened scrutiny. Even though the Fifth Amendment explicitly protects
158
The constitutional double standard becomes perplexing in cases where fundamental and non-fundamental
rights overlap. A few years ago, the Eleventh Circuit upheld the constitutionality of an Alabama law banning the
commercial distribution of sex toys. Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007). The case involved the
collision of sexual activity (deemed fundamental) and commercial activity (deemed non-fundamental). Plaintiffs
aimed for strict scrutiny by framing the case in sexual-privacy terms because they knew if the case was treated as an
economic-rights case, the ban would likely survive rational-basis review. The Eleventh Circuit applied rational-basis
review and upheld the law, viewing the case as one about accessing sex toys and not about using sex toys. Result:
Purchasing items for the bedroom can be regulated, but using them consensually cannot. The Fifth Circuit held the
opposite way, saying a similar Texas ban violated the Due Process Clause in Reliable Consultants, Inc. v. Earle, 517
F.3d 738, 740 (5th Cir. 2008).
159
545 U.S. 469 (2005) (upholding the power of government to condemn private property for economic-
development purposes).
160
In the wake of Kelo, 45 states enacted property-rights reform to curb eminent domain. See Ilya Somin,
The political and judicial reaction to Kelo, WASH. POST, June 4, 2015, available at
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/04/the-political-and-judicial-reaction-to-
kelo/.
161
Kelo, 545 U.S. at 518 (Thomas, J., dissenting).
35
property, the U.S. Supreme Court has supplanted the Carolene Products bifurcation with rational-
basis deference in takings cases. The Kelo Court stressed its “longstanding policy of deference to
legislative judgments,”162 and its unwillingness to “second-guess”163 the city’s determination as to
“what public needs justify the use of the takings power.”164 Justice O’Connor’s scathing dissent,
her final opinion on the Court, forcefully accused her colleagues of shirking their constitutional
duty.165
A few years later in District of Columbia v. Heller,166 which struck down D.C.’s ban on
handguns and operable long guns, the Court divided on what measure of deference was appropriate
in the Second Amendment context. In dissent, Justice Stevens lauded New Deal-era Justice
Frankfurter and accused the Court of aggressive activism, chastising, “adherence to a policy of
judicial restraint would be far wiser than the bold decision announced today.”167
I would not have Texas judges condone government’s dreamed-up justifications (or dream
up post hoc justifications themselves) for interfering with citizens’ constitutional guarantees. As
in other constitutional settings, we should be neutral arbiters, not bend-over-backwards advocates
for the government. Texas judges weighing state constitutional challenges should scrutinize
government’s actual justifications for a law—what policymakers really had in mind at the time,
not something they dreamed up after litigation erupted. And judges should not be obliged to
concoct speculative or far-fetched rationalizations to save the government’s case.
162
Id. at 469.
163
Id. at 488.
164
Id. at 483.
165
Id. at 494 (O’Connor, J., dissenting).
166
554 U.S. 570 (2008).
167
Id. at 680 n.39 (Stevens, J., dissenting).
36
3. Texas courts need not turn a blind eye to the self-evident reasons why an increasing
number of Texans need a government permission slip to work in their chosen field.
Today’s decision recognizes another key contributor to the irrationalities afflicting
occupational licensing: the hard-wired inclination to reduce competition. This metabolic
impulse—Human Nature 101—has always existed.
English courts protected the right to earn a living since the early Seventeenth Century, long
before the U.S. Constitution was adopted. In 1614, the Court of King’s Bench invalidated a law
that required an apprenticeship with the local guild before someone could become an upholsterer,
dismissing the cries of licensed upholsterers who warned of inexpert practitioners. Lord Chief
Justice Coke, Britain’s highest judicial officer, was unpersuaded, holding “no skill” was required,
“for [someone] may well learn this in seven hours.”168 Lord Coke wrote that Magna Carta (now
800 years old) and English common law safeguarded the right of “any man to use any trade thereby
to maintain himself and his family.”169 He compared the proponents of barriers, invariably
incumbent businesses, to someone rowing a boat: “they look one way and row another: they
pretend public profit, intend private.”170 That is, they speak of public welfare (increasing
competence) but seek private welfare (decreasing competition). Guilds in England wielded
licensing to create “artificial scarcity,” prompting English courts to declare the right to earn a living
one of “nationalistic concern for increasing the wealth of the realm.”171 Lord Coke said legal
redress, not licensing, was preferred for most occupations, explaining the “possibility that a
168
Allen v. Tooley, (1613) 80 Eng. Rep. 1055 (K.B.) 1057; 2 Bulstrode 186, 189.
169
Id. at 1055.
170
R.H. COASE, The Lighthouse in Economics (1974), in THE FIRM, THE MARKET, AND THE LAW 187, 196
(1988) (quoting Chief Justice Sir Edward Coke) (spelling modernized).
171
SANDEFUR, supra note 24, at 23.
37
practitioner might do a bad job was not a good excuse for restricting economic freedom, raising
costs to consumers, and depriving entrepreneurs of economic opportunity.”172
Adam Smith echoed Coke a century and a half later in The Wealth of Nations, calling
efforts to thwart people from exercising their dexterity and industry as they wish “a plain violation
of this most sacred property.”173 Economic freedom was indeed prized in the colonies, which
lacked a guild system, but the right was extolled less as a national wealth creator and more as
man’s natural birthright. In 1775, Thomas Jefferson previewed a principle he would underscore in
the Declaration—the right to pursue happiness174—lamenting British laws that “prohibit us from
manufacturing, for our own use, the articles we raise on our own lands, with our own labour.”175
Like what? Colonists were forbidden from making iron tools. Why? To enrich British toolmakers.
Colonists were forbidden from making their own hats from the fur of American animals. Why? To
enrich British hatmakers. Adam Smith, who considered economic choice “the most sacred and
inviolable of rights,” likewise observed the tendency of trades to raise wages by reducing the
supply of skilled craftsmen.176
172
Id.
173
ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 122 (Edwin
Cannon, ed., Random House 1937).
174
Jefferson echoed phrasing from the Virginia Declaration of Rights, written by Jefferson’s friend George
Mason just one month before Jefferson’s masterpiece was issued, who extolled “the enjoyment of life and liberty,
with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” See Va.
Declaration of Rights § 2 (1776), in 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 234–
35 (1971).
175
THOMAS JEFFERSON, A Summary View of the Rights of British America (1774), in THE JEFFERSONIAN
ENCYCLOPEDIA 963, 964 (John P. Foley ed., Funk & Wagnalls Co. 1900).
176
SMITH, supra note 173, at 121–22.
38
What is past is indeed prologue.177 Fast forward almost 250 years, and a prized taxi
medallion in New York City now costs $1.25 million, quadruple the price of just a decade ago.178
But the unalienable right to pursue happiness is not merely the right to possess things or to
participate in activities we enjoy; it necessarily includes the right to improve our lot in life through
industry and ingenuity.
A raft of modern research by Nobel Prize-winning economist Gary Becker and various
social scientists confirms that practitioners desire to stifle would-be competitors.179 In 2013, the
Texas House Committee on Government Efficiency and Reform found this anticompetitive
impulse alive and well in Texas, where licensure affords “clear advantages to members of the
licensed profession, such as reduced competition and increased earnings.”180 The Committee
observed that stiffer occupational regulations rarely originate with consumer and consumer
advocacy groups; rather, they are pushed by entrenched industry members to secure “less
competition, improved job security, and greater profitability.”181 The Committee, recognizing the
myriad harms of occupational overregulation—measured in damage to “job growth and consumer
choice”182—and fearing that Texas was headed towards “more, large-scale occupational licensing
programs,”183 made this recommendation: “The Legislature should implement a process to review
177
See WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 1.
178
Matt Flegenheimer, $1 Medallions Stifling the Dreams of Cabdrivers, N.Y. TIMES, Nov. 14, 2013, at A24.
179
Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, Q. J. ECON.,
371–400 (1983).
180
INTERIM REPORT, supra note 51, at 59.
181
Id.
182
Id.
183
Id. at 60.
39
proposals to regulate new occupations, as well as existing licensing programs, based on real and
documented harm to the public.”184
The Legislature responded by passing House Bill 86, which creates a mechanism to
critically examine whether existing occupational regulations are still needed, and to phase out
those deemed unnecessary. Specifically, the new law requires the Sunset Advisory Commission,
in assessing “an agency that licenses an occupation or profession,” to probe whether, and how,
existing occupational regulations actually serve the public interest. 185 The new law also allows a
legislator to submit to the Commission for review and analysis any proposed legislation that would
create a new or significantly modify an existing occupational licensing program.186
Courts need not be oblivious to the iron political and economic truth that the regulatory
environment is littered with rent-seeking by special-interest factions who crave the exclusive,
state-protected right to pursue their careers. Again, smart regulations are indispensable, but
184
Id. at 62.
185
TEX. GOV’T CODE § 325.0115(b). The Commission is required to assess:
(1) whether the occupational licensing program:
(A) serves a meaningful, defined public interest; and
(B) provides the least restrictive form of regulation that will adequately protect the public
interest;
(2) the extent to which the regulatory objective of the occupational licensing program may be
achieved through market forces, private or industry certification and accreditation programs, or
enforcement of other law;
(3) the extent to which licensing criteria, if applicable, ensure that applicants have occupational
skill sets or competencies that correlate with a public interest and the impact that those criteria
have on applicants, particularly those with moderate or low incomes, seeking to enter the
occupation or profession; and
(4) the impact of the regulation, including the extent to which the program stimulates or restricts
competition and affects consumer choice and the cost of services. Id. at § 325(b)(1)-(4).
186
The new law authorizes the Commission’s chair to deny such a request for review on the recommendation
of the executive director. The bill requires the Commission to report its review findings to the Legislature before the
start of the next legislative session. The bill also requires the Commission, in analyzing legislation proposing the
creation of an occupational licensing program, to determine whether the unregulated practice of the occupation would
be inconsistent with the public interest, whether the public can reasonably be expected to benefit from an assurance
of initial and continuing professional skill sets or competencies, and whether the public can be more effectively
protected by means other than state regulation. Id. § 325.023(c)(1)–(3).
40
nonsensical regulations inflict multiple burdens—on consumers (who pay more for goods and
services, or try to do the work themselves),187 on would-be entrepreneurs (who find market entry
formidable, if not impossible), on lower-income workers (who can’t break into entry-level trades),
and on the wider public (who endure crimped economic growth while enjoying no tangible benefit
whatsoever).188
IV.
In Europe, charters of liberty have been granted by power. America has set the
example . . . of charters of power granted by liberty.189
The Founders pledged their lives, fortunes, and sacred honors to birth a new type of
nation—one with a radical design: three separate, co-equal, and competing branches. Three rival
branches deriving power from three unrivaled words: “We the People.” Both the Texas and federal
Constitutions presume the branches will be structural adversaries—that legislators, for example,
will jealously guard their lawmaking prerogative if the executive begins aggrandizing power.
Indeed, inter-branch political competition is a precondition to advancing inter-firm economic
competition—that is, the judicial branch asserting judicial power to ensure that the political
branches don’t arbitrarily insulate established practitioners from newcomers.
187
HOWARD BAETJER, JR., FREE OUR MARKETS—A CITIZENS’ GUIDE TO ESSENTIAL ECONOMICS 95–96
(2013).
188
KLEINER, LICENSING OCCUPATIONS, supra note 57, at 53.
James Madison, Charters (Jan. 19, 1792), in JAMES MADISON—WRITINGS 733, 736 (Jack N. Rakove ed.,
189
1999). See also 1 JAMES WILSON, Of the Study of the Law in the United States, in THE WORKS OF JAMES WILSON:
ASSOCIATE JUSTICE OF THE SUPREME COURT, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA 1, 6–7
(James De Witt Andrews ed., Callaghan & Co. 1895) (“Without liberty, law loses its nature and its name, and becomes
oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.”).
41
Madison, lead architect of the U.S. Constitution, saw his bedrock constitutional mission as
ensuring that America does not “convert a limited into an unlimited Govt.”190 Enlightenment
philosopher Montesquieu likewise warned of power concentrated: “When the legislative and
executive powers are united in the same person, or in the same body of magistrates, there can be
no liberty.”191 Madison paid homage to “the celebrated Montesquieu” in Federalist 10, which gave
voice to Madison’s gravest worry: the risk of runaway majorities trampling individual liberty.192
Madison turned 85 on the day delegates adopted the Constitution of the Republic of Texas. “He
lived barely 100 days more, just long enough to see Texas free.”193 And just like Madison’s
handiwork, the Texas Constitution—then and today—exists to secure liberty.
A.
As mentioned earlier, the term “judicial activism” is a legal Rorschach test. I oppose
judicial activism, inventing rights not rooted in the law. But the opposite extreme, judicial
passivism, is corrosive, too—judges who, while not activist, are not active in preserving the
liberties, and the limits, our Framers actually enshrined. The Texas Constitution is irrefutably
framed in proscription, imposing unsubtle and unmistakable limits on government power. It
models the federal Constitution in a fundamental way: dividing government power so that each
branch checks and balances the others. But as we recently observed, “the Texas Constitution takes
Madison a step further by including, unlike the federal Constitution, an explicit Separation of
190
James Madison, Letter to Spencer Roane (Sept. 2, 1819), in JAMES MADISON: WRITINGS, supra note 189,
at 736.
191
1 CHARLES DE SECONDAT MONTESQUIEU, THE SPIRIT OF LAWS 181 (1st Amer. from the 5th London ed.
1802).
192
THE FEDERALIST No. 51, at 298 (James Madison) (Clinton Rossiter ed., 1961) (citing Montesquieu for the
proposition that the three branches of government, yet intertwined, do not violate the principle of separation of
powers).
193
In re State Bd. for Educator Certification, 452 S.W.3d 802, 808 n.38 (Tex. 2013).
42
Powers provision to curb overreaching and to spur rival branches to guard their prerogatives.”194
The Texas Constitution constrains government power in another distinctive way: It lacks a
Necessary and Proper Clause, often invoked to expand Congress’s powers beyond those
specifically enumerated.195 Moreover, as noted above, it contains a Privileges or Immunities
Clause that, unlike the federal version, has never been judicially nullified.196
As judges, we have no business second-guessing policy choices, but when the Constitution
is at stake, it is not impolite to say “no” to government. Liberties for “We the People” necessarily
mean limits on “We the Government.” That’s the very reason constitutions are written: to stop
government abuses, not to ratify them. Our supreme duty to our dual constitutions and to their
shared purpose—to “secure the Blessings of Liberty”197—requires us to check constitutionally
verboten actions, not rubber-stamp them under the banner of majoritarianism. For people to live
their lives as they see fit, a government of limited powers must exercise that power not with force
but with reason. And an independent judiciary must judge government actions, not merely
rationalize them. Judicial restraint doesn’t require courts to ignore the nonrestraint of the other
branches, not when their actions imperil the constitutional liberties of people increasingly
hamstrung in their enjoyment of “Life, Liberty and the pursuit of Happiness.”198
194
Id. at 808 n.39 (citing TEX. CONST. art. II, § 1).
195
U.S. CONST. art. I, § 8, cl. 18.
196
See supra notes 40, 86, and 146, and accompanying text.
197
U.S. CONST. pmbl. See also TEX. CONST. art. I (declaring its utmost mission to safeguard “the general,
great and essential principles of liberty and free government”).
198
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (underscoring that governments are “instituted
among Men” in order to “secure” our “unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness”).
43
The power to “protect the public” is a heady and fearsome one.199 Government is charged
with promoting the general welfare, but it must always act within constitutional constraints. Our
two constitutions exist to advance two purposes: individual liberty through limited government.
Our federal and state Founders saw liberty as America’s natural, foundational value, and our rights
as too numerous to be exhaustively listed. Liberty both justifies government (to erect basic civic
guardrails) and limits government (to minimize abridgements on human freedom). In other words,
our dual constitutional charters exist not to exalt majority rule but to protect prepolitical rights that
limit majority rule. Majoritarianism cannot be permitted to invert our bottom-line constitutional
premise. The might of the majority, whatever the vote count, cannot trample individuals’ rights
recognized in both our federal and state Constitutions, not to mention in our nation’s first law, the
Declaration.200
B.
Our State Constitution, like Madison’s Federal handiwork, is infused with
Newtonian genius: three rival branches locked in synchronous orbit by competing
interests—ambition checking ambition.201
Isaac Newton died in 1727, before James Madison, the Father of the U.S. Constitution, was
even born, but our Founders, both state and federal, understood political physics: “power seized
199
See, supra notes 12–18 (discussing Buck v. Bell, 274 U.S. 200 (1927), which upheld forcible sterilization
of the “feeble-minded”).
200
Congress placed the Declaration of Independence at the outset—page 1, volume 1—of the United States
Code, under this heading: “Organic Laws of the United States of America.” Lincoln describes the Declaration of
Independence as a lens through which just laws become clear—as the framework for interpreting the law—when he
calls the Declaration an “apple of gold,” and the Constitution the “frame of silver” around it. ABRAHAM LINCOLN,
Fragment on the Constitution and the Union (Jan. 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 169
(Roy P. Basler ed., 1953). The Constitution, indeed all laws, must not be considered independently of the ultimate
purpose for which they are designed: not to unhinge democracy, but to secure liberty.
201
In re State Bd. for Educator Certification, 452 S.W.3d 802, 808 (2014).
44
by one branch necessarily means power ceded by another.”202 Newton’s Third Law of Motion,
while a physical law, also operates as a political law. When one branch of government exerts a
force, there occurs an equal and opposite counterforce. The Laws of Constitutional Motion require
these rival branches to stay within their sphere, flexing competing forces so that power is neither
seized nor ceded.
Our Framers understood that government was inclined to advance its own interests, even
to the point of ham-fisted bullying, which is precisely why the Constitution was written—to keep
government on a leash, not We the People. But individual liberty pays the price when our ingenious
system of checks and balances sputters, including when the judiciary subordinates liberty to the
congeries of group interests that dictate majoritarian outcomes. Daily and undeniably, there exist
government incursions that siphon what Thomas Jefferson called our “due degree of liberty”203—
“siphoning that often occurs subtly, with such drop-by-drop gentleness as to be imperceptible.”204
Police power is undoubtedly an attribute of state sovereignty, but sovereignty ultimately
resides in “the people of the State of Texas.”205 The Texas Constitution limits government
encroachments, and does so on purpose. “Our Bill of Rights is not mere hortatory fluff; it is a
202
Id.
203
Letter from Thomas Jefferson to James Madison, Paris (1787), in THE JEFFERSONIAN ENCYCLOPEDIA: A
COMPREHENSIVE COLLECTION OF THE VIEWS OF THOMAS JEFFERSON 277 (John P. Foley ed., 1900). See also Edmund
Burke, Speech on Moving His Resolutions for Conciliation with the Colonies, Mar. 22, 1775, in EDMUND BURKE:
SELECTED WRITINGS AND SPEECHES 147, 158 (Peter J. Stanlis ed., Doubleday & Co. 1968) (‘‘In this character of the
Americans a love of freedom is the predominating feature which marks and distinguishes the whole: and as an ardent
is always a jealous affection, your colonies become suspicious, restive, and untractable, whenever they see the least
attempt to wrest from them by force, or shuffle from them by chicane, what they think the only advantage worth living
for. This fierce spirit of liberty is stronger in the English colonies, probably, than in any other people of the earth . . .”).
204
Robinson v. Crown Cork & Seal, Inc., 335 S.W.3d 126, 165 (Tex. 2010) (Willett, J., concurring). Or, as
18th-century philosopher David Hume cautioned, “It is seldom, that liberty of any kind is lost all at once.” Rather,
suppression “must steal in upon [people] by degrees, and must disguise itself in a thousand shapes, in order to be
received.” DAVID HUME, OF THE LIBERTY OF THE PRESS (1741), in David HUME: POLITICAL ESSAYS 3 n.4 (Knud
Haakonssen ed., 1994).
205
TEX. CONST. pmbl.
45
purposeful check on government power.”206 And everyday Texans, and the courts that serve them,
must remain vigilant. Government will always insist it is acting for the public’s greater good, but
as Justice Brandeis warned in his now-celebrated Olmstead dissent: “Experience should teach us
to be most on our guard to protect liberty when the government’s purposes are beneficent.”207
Before solving a problem, you must first define it. The Lone Star State boasts a spirit of
daring and rugged independence, virtues essential to personal and economic dynamism, but
bureaucratic headwinds imperil that vitality. Almost two centuries ago, around the time of Texas
independence, Alexis de Tocqueville, a keen observer of early America, warned of “soft
despotism” wrought by government that “covers the surface of society with a network of small
complicated rules” that “even the most original and energetic characters cannot penetrate.”208
Tocqueville’s warnings for 1835 America apply equally to 2015 Texas, where “administrative
despotism,” though doubtless well meaning, inflicts a real-world toll on honest, hardworking
Texans:
The will of man is not shattered, but softened, bent, and guided; men are seldom
forced by it to act, but they are constantly restrained from acting. Such a power
does not destroy, but it prevents existence; it does not tyrannize, but it compresses,
enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing
better than a flock of timid and industrious animals, of which government is the
shepherd.209
Government’s conception of its own power as limitless is hard-wired. But under the Texas
Constitution, government may only pursue constitutionally permissible ends. Naked economic
206
Robinson, 335 S.W.3d at 164 (Willett, J., concurring).
207
Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting), overruled by Katz v. United
States, 389 U.S. 347 (1967).
208
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 319 (P. Bradley ed.1994).
209
Id.
46
protectionism, strangling hopes and dreams with bureaucratic red tape, is not one of them. And
such barriers, often stemming from interest-group politics, are often insurmountable for Texans on
the lower rungs of the economic ladder (who unsurprisingly lack political power)—not to mention
the harm inflicted on consumers deprived of the fruits of industrious entrepreneurs. Irrational
licensing laws oppress hard-working Texans of modest means, men and women struggling to do
what Texans of all generations have done: to better their families through honest enterprise.210
V.
[W]hile baseball may be the national pastime of the citizenry, dishing out special
economic benefits to certain in-state industries remains the favored pastime of state
and local governments.211
Governments are “instituted among Men” to “secure” preexisting, “unalienable Rights.”212
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 monarchical 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,”213 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”
210
To the degree that “footnote four” of Carolene Products says “discrete and insular minorities” in the
political arena deserve special judicial protection, it is tough to imagine a group more disadvantaged by the
majoritarian political process than would-be entrepreneurs denied their calling by Byzantine, State-enforced barriers
enacted at the behest of entrenched, politically powerful interests.
211
Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).
212
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
213
Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
47
is the “first object of government,”214 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.”215 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.216 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.217 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 the reservations of particular rights or
214
THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).
215
MADISON, Property (Mar. 29, 1792), in JAMES MADISON: WRITINGS, supra note 189, at 516. The author
of the Declaration agreed: “[E]very one has a natural right to choose that [vocation] which he thinks most likely to
give him comfortable subsistence.” THOMAS JEFFERSON, THOUGHTS ON LOTTERIES (1826), in THE JEFFERSONIAN
ENCYCLOPEDIA 609 (John P. Foley ed., Funk & Wagnalls Co. 1900).
216
As discussed above, see supra notes 194–96 and accompanying text, the Texas Constitution does not
mirror exactly the U.S. Constitution, and our Privileges or Immunities Clause, best I can tell, is alive and well, unlike
its federal counterpart.
217
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
48
privileges would amount to nothing.”218 Judicial duty—“so arduous a duty,” Hamilton called it—
requires courts to be “bulwarks of a limited Constitution against legislative encroachments,”219
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.”220
__________________________________________
Don R. Willett
Justice
OPINION DELIVERED: June 26, 2015
218
THE FEDERALIST NO. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
219
Id. at 469.
220
Letter from David Crockett to his children (Jan. 9, 1836), in H.W. BRANDS, LONE STAR NATION 332
(2004).
49