Towards a Consistent Economic Liberty Jurisprudence

28 Pages Posted: 16 May 2016

Date Written: May 4, 2016


The constitutional status of the right to earn a living has been unresolved for more than half a century. On the one hand, the Supreme Court has consistently affirmed that the Constitution protects Americans’ right to choose and pursue a lawful calling. On the other hand, the Court does not consistently seek to determine whether governmental burdens on that right serve constitutionally proper ends.

The Court’s practical abdication of its duty to “say what the law is” has fostered the proliferation of occupational licensing laws that often have nothing to do with protecting the public from incompetence or fraud and everything to do with protecting politically powerful economic interests from competition in the marketplace. It has also eroded rights that the Court otherwise vigorously protects. Thus, while the Court’s protection of freedom of speech is at an historical high-water mark in some regards, the Court has provided virtually no guidance about how the First Amendment applies to restrictions on occupational speech: the speech of tour guides, therapists, and others who earn their living through vocations that consist almost entirely of speaking.

The Court’s inconsistency has given rise to immense confusion below. While some federal courts of appeals have subjected restrictions on occupational speech to heightened scrutiny, others have concluded that such restrictions do not implicate the First Amendment and have applied rational basis review. And some lower courts reviewing occupational licensing laws under the “rational basis test” have even concluded that legislatures may engage in “mere protectionism” (i.e., pass regulations that exclusively serve to confer economic benefits upon preferred classes of businesspeople).

This Essay argues that the Court should hold that mere protectionism is constitutionally impermissible, drawing upon the Court’s longstanding rejection of government actions that serve only to impose the preferences of the politically powerful. It also contends that the rational basis test should be replaced with a more rigorous standard of review. Lastly, this Essay explains why the reasoning of the Court’s decision in Reed v. Town of Gilbert requires a rule of strict scrutiny for content-based restrictions on occupational speech.

Keywords: Economic protectionism, right to earn a living, substantive due process, Fourteenth Amendment, Due Process Clause, Equal Protection Clause, First Amendment, Reed v. Town of Gilbert, freedom of speech, professional speech, occupational speech, naked preferences, rational basis

Suggested Citation

Bernick, Evan D., Towards a Consistent Economic Liberty Jurisprudence (May 4, 2016). George Mason Law Review, Vol. 23, No. 3, 2016 . Available at SSRN:

Evan D. Bernick (Contact Author)

Judicial Clerk ( email )

Milwaukee, WI 53202
United States

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