The Due Process Right to Pursue a Lawful Occupation: A Brighter Future Ahead?

18 Pages Posted: 9 Jan 2017

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Date Written: December 5, 2016


The ghost of Lochner hangs over due process challenges to laws that restrict entry to occupations. In an attempt to vanquish the remnants of Lochner and similar pre-New Deal cases, the Supreme Court established and applied a weak rational basis test to evaluate all economic regulation, including occupational regulations, leaving very little room for successful challenges.

Recent precedent, however, suggests that courts are becoming more protective of the right to pursue an occupation. The gradual undermining of standard critiques of Lochner and its progeny on the one hand, and the spread of costly and restrictive occupational licensing to jobs that pose minimal risk to public well-being on the other, have ignited debate over whether strict judicial deference to even the most arbitrary and abusive licensing laws is appropriate.

Meanwhile, the unofficial demise of the fundamental/non-fundamental rights dichotomy in the Supreme Court’s due process jurisprudence, combined with a rising generation of judges, liberal and conservative, who may not share their predecessors’ reflexive hostility to meaningful judicial oversight of occupational restrictions, provide a glimmer of hope that the right to pursue a lawful occupation free from unreasonable government regulation will soon be rescued from constitutional purgatory.

Keywords: Constitutional Law, Due Process Clause, Economic Rights, Fundamental Rights, Lochner v. New York, Occupational Liberty, Occupational Restrictions, Rational Basis, Strict Scrutiny, Supreme Court

JEL Classification: K10, K30

Suggested Citation

Bernstein, David Eliot, The Due Process Right to Pursue a Lawful Occupation: A Brighter Future Ahead? (December 5, 2016). The Yale Law Journal Forum, 2016, George Mason Legal Studies Research Paper No. LS 17-01, Available at SSRN: or

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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