Anthony Sanders · December 17, 2021

This week an old case with a fiery warning.

Everyone who takes Constitutional Law in law school (or maybe in undergraduate versions too) learns that the Supreme Court killed economic liberty in 1937 with West Coast Hotel v. Parrish. There, it is taught, the Court closed the door on the Lochner era and has since never found a law to violate the right to earn a living.

In fact, the story is much more complicated than that, and in recent years federal courts have concluded a few laws violate that right even under the modern “rational basis test.” But the gist of the story is true. The Court took economic liberty much less seriously after West Coast Hotel and related cases, beginning three years before with Nebbia v. New York. There, it concluded that it was within the states’ power to fix the price of something, i.e., it was constitutional to make something, in this case milk, more expensive for people to buy than it otherwise would be, and left it to the legislature whether the regulated item is “affected with a public interest.” This gave very little scope for courts to review the constitutionality of price controls.

That is, very little scope in federal court. Although a heightened awareness of state constitutions is a phenomenon of the last few decades, especially the last few years, state courts have interpreted their own constitutions differently from the U.S. Constitution ever since the Fourteenth Amendment was adopted, and before. And so after Nebbia and West Coast Hotel many state courts continued protecting economic liberty when interpreting their own constitutions.

I’ve written about this before. Today I want to just single out one case from 1951, Harris v. Duncan, from the Georgia Supreme Court. There the court addressed whether a state law fixing the price of milk violated the state and U.S. Constitutions. Essentially it was Nebbia but in Georgia.

The court, in an opinion by Justice William Atkinson, looked at the majority opinion and dissent in Nebbia as well as some of its own precedent and concluded that the law was unconstitutional. It stated “the right to contract is a property right which is protected by the due-process clauses of our State and Federal constitutions, which can not be abridged by mere legislative act.” It recognized that the right can be regulated, including the price something is sold at, but only if it is “affected with a public interest.” Historically this was a very squishy term, and the Nebbia court essentially washed its hands of trying to define it. But the Harris court pushed back and stated that it essentially is something we’d today call a natural monopoly. “Devoted to a public use” is one way the court put it. Thus, utilities, common carriers, and other similar businesses can have their prices regulated, but not just any old business that sells something people need, like milk. Reasoned the court, this would mean the legislature could fix the price of anything, including “meat and bread.” And “[o]nce the constitutional barrier against infringement upon the right of free contract is down, and the gates become open to products because of their universal use by the public and its concern for a constant and adequate supply thereof, other products such as gasoline, oil, tobacco, clothing, and similar articles could well be the subject for price fixing.” (The funny thing is almost all of these have at one time or another been subject to price controls!)

Now, that’s pretty strong talk, pushing back against the state-intervention that had become popular in the post-New Deal and World War II environment. But the real fireworks came in the concurrence of Chief Justice William Duckworth. He outlined the tension between the pre- and post-Nebbia opinions of the U.S. Supreme Court and then placing a flag for the future asserted “Constitutional guarantees of individual liberty did not change in 1934 or any other year, and so long as they remain in the Constitution their meaning does not change to suit the political philosophy of anyone.”

But the future was now under the state constitution, as he explained: “The ground of the demurrer invoking the due-process clause of the State Constitution requires a decision by this court upon that question unhampered by the decisions of the Federal court on the Federal question.” And on that score “The Constitution of this State, by repeated declarations, leaves no room for doubt but that it intends to place around private property the same safeguards with which it shields life and liberty.” Further, the need to protect economic liberty was especially strong because of, as he thinly alludes to, the global fight against Communism:

While it is no legitimate function of the judiciary to advocate or establish any given systems of government, yet it is not inappropriate in this day and age when the American system of human liberty and free enterprise that has demonstrated its pre-eminent virtue in the growth of the most powerful nation on earth in a relatively short period of time is being assailed from within and from without by the advocates of principles that would render the individual a slave and the government a master to point to that glorious record as justification for our constitutional system.

He finished this call off with a plea to not blindly defer to the legislature on these questions lest it lose liberty in the process: “By such conduct the legislature, aided and abetted by the judiciary of this State, could ultimately convert Georgia into a socialistic State despite the plain provisions of the Constitution which forbid such.”

Wow! And they say the opinions of today’s judges are heated.

Long term the record of these warnings are mixed. It is true that even today state supreme courts often do protect economic liberty at a higher level than the U.S. Supreme Court does under the Fourteenth Amendment (including in Georgia), but not as frequently as at the time of Harris.

Incidentally, if you live in the Atlanta area and want to learn more about the Georgia Constitution specifically, including about how it protects the right to earn a living (and get a free lunch) please come to our Judicial Engagement State Forum on Friday, February 4, 2022 at Georgia State University College of Law. You can RSVP here.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.