Economic Liberty Backgrounder

The philosophy of IJ’s economic liberty mission is simple: People have a right to engage in productive activity—i.e., to make a living—free from undue government interference. The U.S. Supreme Court and lower federal courts acknowledge the existence of that right but have all too often refused to enforce it in any meaningful way. IJ aims to correct that error by demonstrating that economic liberty not only matters morally but that protection for economic liberty has a genuine basis in the text, history and original public meaning of the U.S. Constitution and that economic liberty is entitled to a meaningful level of judicial review.

IJ’s economic liberty cases have covered a wide range of vocations, including African hair braiding, commuter vans in New York City, Las Vegas limousines, wine shipping, casket sales, “floating” horse teeth and therapeutic horse massage, and selling a variety of products in various settings in the face of arbitrary municipal restrictions. It is currently fighting for the rights of entrepreneurs in fields ranging from transportation to street vending to hair braiding to health care.

IJ’s economic liberty strategy is simple: Find outrageous laws that protect entrenched interests at the expense of entrepreneurs and consumers; show judges the horrible effects those laws have on the lives of real people; and persuade judges that if they want to do justice they can.

Most IJ economic liberty cases are brought under the 14th Amendment to the U.S. Constitution, which provides three important substantive limits on government power in the Due Process Clause, the Equal Protection Clause, and the Privileges or Immunities Clause.

The last of these clauses—the Privileges or Immunities Clause—was originally intended as a powerful safeguard for individual rights, including economic liberty. Unfortunately, just a few years after the ratification of the 14th Amendment, the Privileges or Immunities Clause was read out of the Constitution in a U.S. Supreme Court decision known as The Slaughter-House Cases. In this decision, the Court ruled that the Privileges or Immunities Clause is meant to protect only a handful of obscure rights of “national citizenship,” such as the right to protection from pirates on the high seas or the right to access federal subtreasuries.  That decision is indefensible on any reasonable understanding of the Constitution, and IJ is committed to seeing it overturned.

The Slaughter-House decision, though, does not mean that the 14th Amendment is not a useful tool to protect economic liberty. Both the Due Process Clause (which has come to take on some of the functions originally intended for the Privileges or Immunities Clause) and the Equal Protection Clause (which is a powerful tool to battle illegitimate governmental favoritism) remain in force.  This was not always the case: For decades, both of these clauses fell into disuse in the realm of economic liberty. Indeed, when IJ first opened its doors in 1991, no federal appellate court had struck down an economic regulation under the 14th Amendment since the New Deal. IJ’s mission, through strategic litigation and careful, constitutionally based legal argument, was to change that trend.

And IJ has. Increasingly, courts are taking seriously the duty to engage with economic liberty claims and give overreaching government authorities an important constitutional message: Enough is enough. Again and again, in cases like the 2002 decision in Craigmiles v. Giles by the 6th U.S. Circuit Court of Appeals or the 2013 decision in St. Joseph Abbey v. Castille  by the 5th U.S. Circuit Court of Appeals, federal courts have stood up for entrepreneurs and economic liberty—and for the Constitution.

While the 14th  Amendment is an important aspect of IJ’s litigation, it is far from the only legal tool in its arsenal. IJ also has successfully litigated claims under the dormant Commerce Clause, which protects the free flow of commerce across state lines and prevents states from setting up barriers to out-of-state entrepreneurs as well as claims under the constitutions of several different states. But whatever claim IJ brings, its core mission is the same: It ensures serious constitutional protection for the basic right to economic liberty. Every IJ case is designed not just to bring about a positive result for its individual client but to help establish permanent, far-reaching precedents that will protect the rights of other entrepreneurs in other industries for many years to come.

Ultimately, IJ is committed to a rule of law under which entrepreneurs are free to innovate without unnecessary government interference and to a country where consumers, rather than bureaucrats, decide which businesses succeed. Through strategic litigation, activism, legislative advocacy and strategic research, IJ is moving steadily toward that goal.

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