And it would have ended the injustice being done to Newell-Davis and those whom Louisiana’s government is, for its convenience, preventing her from serving. Instead, the court, which is currently accused of insufficient fidelity to precedents, has preserved one that enables government-inflicted abridgments of individuals’ rights.
The court’s worst mistake was Dred Scott v. Sandford (1857), holding that Black people have no rights that White people are bound to respect. The Civil War made possible, in 1868, the 14th Amendment, which says no state shall abridge any American’s “privileges or immunities.” The legislative history of the “privileges or immunities” clause shows that this phrase, written to protect newly freed Blacks from states’ oppressions, affirmed various fundamental rights of national citizenship.
These included those secured by the Bill of Rights, the 1866 Civil Rights Act and other unenumerated rights derived from the common law and acknowledged by the Ninth Amendment. (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) In 1873, however, the “privileges or immunities” provision was all but nullified by a Supreme Court decision preserving a Louisiana government-created monopoly.
Some Louisiana butchers contested the monopoly conferred by their state on a single slaughterhouse, saying this abridged their right to earn a living. Ohio’s Rep. John Bingham, the foremost author of the 14th Amendment’s first section, said it was to protect, inter alia, “the liberty … to work in an honest calling.” This fundamental right, which is deeply rooted in this nation’s history, is the antonym of the slavery to which the 14th Amendment responded.
The court, however, held that “privileges or immunities” refers merely to a few narrow and obscure federal rights (e.g., protection on the high seas). And earlier this month, the court ratified this 1873 mistake, declining to hear a “privileges or immunities” challenge to another disreputable Louisiana restriction of economic liberty.
Newell-Davis, a New Orleans social worker with undergraduate and master’s degrees in social work and more than two decades of experience, wants to provide respite child-care services to parents who have special-needs children. But Louisiana’s Health Department requires a “Facility Need Review,” which evaluates not a caregiver’s competence but four bureaucrats’ determination that the community needs the caregiver’s services.
By what standard does it measure need? Its own needs. Incredibly, the department says that this barrier to entry into the caregiving field “self-evidently” serves the public interest by giving department bureaucrats fewer caregivers to scrutinize. Never mind any shortage of Louisiana respite care. Newell-Davis is denied government’s permission to practice her craft so that government can conserve its regulatory energies. She cannot work at all so that the bureaucrats can work less than they otherwise would.
Because the court long ago eviscerated the straightforward “privileges or immunities” clause, occupational-licensing laws have been combated, awkwardly and without sufficient success, as violations of “substantive due process.” The theory is that the adjective “due” modifies the noun “process”: Due process supposedly prevents capricious, arbitrary and irrational barriers to entry into this or that field. Courts have enforced this only intermittently and uneasily — partly because many are wary of unenumerated rights.
In its unsuccessful (but unanswerable) petition urging the court to hear Newell-Davis’s case, the Pacific Legal Foundation (PLF) skewered Louisiana’s nonsense: Under Louisiana’s reasoning, government could economize election resources by having fewer polling places. It could enhance the administrative ease of education bureaucracies by educating fewer children.
Louisiana’s argument, the petition said, is that “the Department can deprive people of constitutional rights because doing so allows it to oversee fewer people exercising their constitutional rights.” The PLF unavailingly reminded today’s court that 100 years ago the court said “the right to earn a living” is “the very essence of the personal freedom that it is the purpose of the [14th] Amendment to secure.”
The court, deferring to its own blunders, chose to preserve a precedent that prevents robust responses to abuses such as Louisiana’s abridgment of Newell-Davis’s rights. The court should have remembered James Madison’s admonition in 1792 that it is “not a just government … where arbitrary restrictions, exemptions and monopolies deny to part of its citizens [the] free use of their faculties, and free choice of their occupations.”
Credit: Source link
