Do residents of Washington have the right to earn an honest living in the occupation of their choice, or may the government enforce arbitrary and anti-competitive monopolies that allow the government—rather than the individual—to decide who may enter a field and who will be excluded? The Institute for Justice Washington Chapter (IJ-WA) argued a case on just that issue before the Washington Supreme Court on March 22 in Olympia. This is the first economic liberty case IJ has presented before a state supreme court under a state constitution—an achievement 15 years in the making.
IJ’s client is Joe Ventenbergs, who made a living hauling construction, demolition and land-clearing waste in Seattle. In 2001, the City of Seattle made it illegal for anyone but two large, multi-national corporations to haul such waste, effectively putting Joe out of business. Represented by the IJ Washington Chapter, Joe fought back and filed a lawsuit claiming that Seattle’s actions violated his rights under the Washington Constitution’s Privileges or Immunities Clause. That provision was written in 1889 to prevent the state and local governments from granting preferential treatment to large corporations. The clause remained dormant for decades until a 2004 decision from the state supreme court held that it provides greater protections than the U.S. Constitution’s Equal Protection Clause. In Joe’s case, the state’s high court will address whether the Washington Constitution really protects small entrepreneurs from manipulations of the political process by large corporate interests or whether the people who wrote the Washington Constitution labored in vain.
“This is the first economic liberty case IJ will have before a state supreme court under a state constitution—an achievement 15 years in the making.”
The case is significant not just because it concerns the livelihood of a hard-working entrepreneur, but also because it is one of the first cases in the United States to address whether state constitutions provide protections for the right to earn a living. Because the federal courts have provided only narrow protections for this fundamental right, it has often become necessary for entrepreneurs to look to state constitutions and state courts to vindicate their rights. Although IJ’s quest for greater constitutional protection of economic liberty goes back to our founding in 1991, the ability to rely on state constitutions for greater protections for fundamental liberties is one of the reasons that IJ started opening state chapters in 2001. This effort had its first test in the field of economic liberty when Joe’s case was heard in March. Our goal in the state courts is to provide a roadmap for federal courts to once again recognize that one’s ability to earn a living is a vital and significant part of the freedoms guaranteed by the U.S. and state constitutions.
This will not be an easy task, however. For decades, the accepted position of the legal establishment at both the federal and state levels has been that economic liberties do not deserve any meaningful protection from the courts. With IJ’s “never-say-die” attitude, we are challenging this conventional wisdom and seek to return economic liberty to its rightful place as one of our fundamental rights. We will not stop fighting until all entrepreneurs in this country are free to practice their trades unencumbered by government-imposed monopolies designed to protect special interests from competition.
William R. Maurer is executive director of IJ’s Washington Chapter.