Economic Liberty’s Secret Weapon: State Constitutions

June 5, 2015

In 1776, New Hampshire adopted the first written state constitution—written years before the U.S. Constitution. And since then, state constitutions have protected many of our most basic liberties, such as the right to earn a living. For years, IJ has litigated under state constitutions, fighting for everything from the freedom to own a taxicab in Wisconsin to the right to sell flowers in Florida.

But we have noticed something missing in those battles. While we rely on academic research for many of our other cases, especially on how the U.S. Constitution protects economic liberties, there is very little research on how state constitutions do the same thing. That is surprising. Even after federal courts stopped enforcing the U.S. Constitution’s similar protections after the New Deal, many state courts have continued protecting the rights of entrepreneurs. Research on this history would be invaluable.

So, instead of waiting for legal academics to come to us, we went to them.

On April 10, IJ partnered with the New York University School of Law’s student journal, the NYU Journal of Law and Liberty, and held a day-long symposium, Economic Liberties and State Constitutions, at the law school. In a fascinating intellectual adventure, several prominent legal scholars delivered papers that will be published in the journal later this year.

Keynoting the event was a recently retired judge, the Honorable Robert S. Smith, who sat on New York’s highest court for over a decade. He discussed when state courts should protect rights under state constitutions when the U.S. Supreme Court has failed to do so under the U.S. Constitution.

Four prominent law professors presented original ideas IJ can use in fighting unnecessary regulations on entrepreneurs and small businesses: Professor Richard Epstein of NYU and the University of Chicago law schools, a longtime friend and even a former client of IJ; Professor Jim Ely of Vanderbilt Law School; Dean Dan Rodriguez of Northwestern School of Law; and Professor Steve Calabresi, also of Northwestern School of Law.

This research will strengthen future IJ cases and inspire more research. One area we are particularly interested in is state constitutional provisions protecting economic liberty that are different from language found in the U.S. Constitution. For example, Florida’s bill of rights has a clause protecting the right “to be rewarded for industry.” Similarly, Montana has a clause protecting the right “of pursuing life’s basic necessities.”

In our view, that language should protect entrepreneurs in those states from bureaucrats sapping away their hard work and profits. These provisions have their own specific histories and meanings crying out for analysis. That research can bolster IJ economic liberty cases and inform state courts when they rule.

Perhaps a few years from now you will visit a business that was able to open because of IJ’s litigation and that relied on research into how your state’s constitution protects the right to earn a living. Events like our symposium are long-term investments in those future victories.

Anthony Sanders is an IJ attorney.

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