Burying The Casket Cartel

May 2002

Burying The Casket Cartel

By Chip Mellor

Reverend Nathaniel Craigmiles, his business partner Tommy Wilson, IJ Attorney and Dunn Foundation Fellow in Constitutional Litigation Steve Simpson and I entered the U.S. Court of Appeals for the Sixth Circuit’s stately wood-paneled courtroom with eager anticipation. After oral argument that day, the court would decide whether or not Reverend Craigmiles and Mr. Wilson may continue their thriving casket retail business without having to become licensed funeral directors. But much more is at stake here than two men’s livelihood. This is the first federal appellate court case to decide whether economic liberty will receive the full constitutional protection the Framers intended.

Liberty & Law readers will recall that this case arose out of Chattanooga, Tennessee, where Reverend Craigmiles and Mr. Wilson—recognizing entrepreneurial opportunity—decided to sell caskets with minimal mark-ups to their inner-city community. (Area funeral directors routinely marked up caskets 200-600 percent.) Not long after Reverend Craigmiles and Mr. Wilson opened their store, they were served with a Cease and Desist Order from the Tennessee Board of Funeral Directors and Embalmers. The Board—six out of seven of whose members are funeral directors—demanded that Craigmiles and Wilson obtain funeral director’s licenses before selling caskets.

To get a funeral director’s license in Tennessee and 10 other states, individuals must dedicate at least two years of their life. During that time, that person will come into frequent contact with dead bodies, often handling them, even participating in embalming. They must also incur tens of thousands of dollars in expenses through tuition and lost income. And they must master voluminous information and skills absolutely irrelevant to selling caskets.

In August 1999, the Institute for Justice scored a hallmark victory when the trial court struck down Tennessee’s licensing requirement. The court recognized that caskets were nothing more than ?a box? and that the licensing requirement was not a rational means of achieving government-asserted interests in consumer protection or public health and safety.

“Our goal is to put teeth in the rational basis test to make sure that government does not have a green light to run roughshod over economic liberty.”

The federal court’s finding was particularly noteworthy for the Institute for Justice’s long-term quest for economic liberty; the judge recognized there must be a fit between any asserted governmental purpose and the means the state chooses to achieve that purpose. In other words, the state cannot simply make a blanket claim that any economic regulation it passes is valid because of some contrived purpose that the state conjures up. This is important because today courts routinely defer to legislatures and city councils on economic regulation. Under the “rational basis test,” all too often courts simply uphold Draconian cond itions on entry or outright barriers to the market on the flimsiest rationales. Our goal is to put teeth in the rational basis test to make sure that government does not have a green light to run roughshod over economic liberty.

Ultimately, this will require overturning the Slaughter-House Cases, which were decided in 1873. In Slaughter-House, a sharply divided U.S. Supreme Court upheld Louisiana’s award of a butchering monopoly to a private company. In so doing, the Supreme Court eviscerated the 14th Amendment’s Privileges or Immunities Clause. This ushered in rampant growth of economic regulation, the welfare state and an abdication of judicial responsibility for effectively checking legislative excesses in economic affairs. The Institute for Justice is dedicated to overturning Slaughter-House, and this case puts squarely before a federal appeals court the issue of whether or not the Privileges or Immunities Clause will—as its Framers intended—protect Americans’ hallowed right to earn an honest living without arbitrary government interference. We won’t stop until the U.S. Supreme Court undoes the wrong it committed 129 years ago.

After a vigorous oral argument, the court took the case under advisement. We look forward to the court’s opinion and to the ultimate prospect of prevailing in our quest for liberty by overturning the Slaughter-House Cases.

Chip Mellor is IJ’s president and general counsel.