Naming the Struggle: Your Right to Earn an Honest Living

The U.S. Constitution protects every American’s right to economic liberty.

The 14th Amendment was passed in response to the ongoing suppression of economic liberty and other civil rights by southern governments in the wake of the Civil War. Some states tried to keep newly freed slaves in a state of constructive servitude by depriving them of even the most basic freedoms, including the right to earn an honest living and own property.

The 14th Amendment empowered the federal government to curb these abuses by providing that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” Although it is not in common use now, the term “privileges or immunities,” at that time, meant “rights.” The framers of the 14th Amendment made a conscious decision not to list every single right protected by the Privileges or Immunities Clause, including various economic liberties. They understood that it would be impossible to do so—particularly in the face of such creative and widespread abuses that were being committed against newly freed slaves and their white supporters.

Unfortunately, the U.S. Supreme Court effectively wrote the Privileges or Immunities Clause out of the 14th Amendment just five years later in 1873 with its decision in the Slaughter-House Cases. In these cases, a group of Louisiana butchers lost its challenge to a Louisiana law that created a monopoly on the sale and slaughter of animals in New Orleans. Slaughter-House stripped the 14th Amendment of its power to protect economic liberty and other rights.

Slaughter-House was a constitutional challenge by a group of butchers to a Louisiana law that created a monopoly on the sale and slaughter of animals in New Orleans. The law did not prevent the butchers from working, but required them to do so in a slaughterhouse operated by a single company to which they were required to pay fees. The butchers argued that their right to earn a living free from unreasonable and anti-competitive government regulations was protected by the Privileges or Immunities Clause.

Unfortunately, a majority of the Court disagreed, interpreting the clause to protect a narrow set of rights of “national citizenship,” like access to navigable waterways and federal “subtreasuries.” But these are most certainly not the rights over which we fought a Civil War, nor were they the rights whose systematic violation inspired the 14th Amendment.

The U.S. Supreme Court’s pro-government activism, or “judicial abdication,” (i.e. failing to enforce constitutional limits on government power by simply rubber-stamping whatever the government is doing and ignoring the true basis for its actions) in Slaughter-House stripped the 14th Amendment of its power to protect economic liberty and other rights and paved the way for the racial caste system of Jim Crow. Since then, the Court has adopted a convoluted, ad hoc theory of liberty under the 14th Amendment, affording different rights different levels of protection (or none) in different circumstances—which has created the outrageous circumstances you find yourself in today.
Neither the Founding Fathers nor the authors of the 14th Amendment would have approved of government power being used to limit competition or entrepreneurship.

Since then, the Court has adopted a complicated, ad hoc theory of liberty under the 14th Amendment, affording different rights different levels of protection (or none) in different circumstances—which has created the outrageous circumstances you find yourself in today.

Neither the Founding Fathers nor the authors of the 14th Amendment would have approved of government power being used to limit competition or entrepreneurship.

The government shouldn’t be standing in the way of entrepreneurs, making it more difficult to earn an honest living. It’s hard enough out there without these barriers. Instead, the government should be embracing entrepreneurs.