The Volokh Conspiracy

At my suggestion, Intelligence Squared is hosting a debate on the motion: Abolish The Minimum Wage. At a time when President Obama is proposing to increase it, I thought it might be useful to go back to first principles and explore whether the minimum wage is good policy in the first place. The debaters are top-notch, and the program promises to be very lively.

Intelligence Squared debates are usually held in New York City, but this one will be in Washington, DC, at the Burke Theater at the U.S. Navy Memorial, 701 Pennsylvania Avenue, NW. Wednesday, April 3. Reception, 4:30-5:15pm; Debate, 5:30-7:00pm.

More information is available here. Tickets to the live debate can be purchased here. And, on April 10, the podcast will be available here.

The decision is St. Joseph Abbey v. Castille (5th Cir. Mar. 20, 2013), and it strikes down “rules issued by the Louisiana Board of Funeral Directors granting funeral homes an exclusive right to sell caskets.” The court concludes that “mere economic protection of a particular industry” is not “a legitimate governmental purpose,” and that the law is not rationally related to any other, more legitimate, purposes. On this, the court agrees with Craigmiles v. Giles (6th Cir. 2002) and disagrees with Powers v. Oklahoma (10th Cir. 2004). Here’s a quote that captures well the court’s reasoning (whether you agree with it or not):

The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation. The deference we owe expresses mighty principles of federalism and judicial roles. The principle we protect from the hand of the State today protects an equally vital core principle –- the taking of wealth and handing it to others when it comes not as economic protectionism in service of the public good but as “economic” protection of the rulemakers’ pockets.

Another big win for the Institute for Justice, which has shown a rare ability to win economic regulation cases on the grounds that the regulation lacks a “rational basis,” even though the rational basis test in economic liberty cases is usually extremely deferential to the government.

On Monday, March 11, I will be debating Georgetown Law Professor Michael Seidman at the Rutgers University School of Law in Camden, NJ, on the subject of whether the Constitution protects economic rights, broadly defined to include property rights as well as freedom of contract. The event will begin at 11 AM and continue for about 90 minutes or so. Rutgers Professor Earl Maltz will moderate.

These sorts of economic liberty rational basis cases are very hard to win, but the Institute for Justice is remarkably good at winning them. Here’s IJ’s summary:

In a major victory for economic liberty, a federal court ruled late yesterday that Utah’s requirement that hairbraiders have a government-issued cosmetology license is unconstitutional. Jestina Clayton, a Salt Lake city-based African hairbraider with more than 23 years of experience. Along with the Institute for Justice and local counsel Maxwell Miller and Randy Grimshaw of Parsons Behle & Latimer in Salt Lake City, Jestina filed suit to fight the state’s anti-competitive cosmetology regulations.

Under Utah law, Jestina could not be paid to braid hair unless she first spent thousands of dollars on 2,000 hours — one full year — of government-mandated cosmetology training. But Utah never considered African hair braiding when creating its licensing scheme and has never investigated whether African hair braiding is a threat to public health or safety. Moreover, Utah’s mandatory training is almost entirely irrelevant to African hairbraiding; Jestina would have to spend almost all of her 2,000 hours on irrelevant topics, and Utah did not even know whether African hair braiding was taught in its approved cosmetology schools.

The Honorable David Sam of U.S District Court for the District of Utah held, consistent with decades of U.S. Supreme Court precedent, that “The right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that the Constitution was designed to protect.”

Judge Sam further ruled that “Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of African hairbraiding, much less from whatever minimal threats to public health and safety are connected to braiding, that to premise Jestina’s right to earn a living by braiding hair on that scheme is wholly irrational and a violation of her constitutionally protected rights.”

Finally, the ruling stated that, “Utah’s regulations do not advance public health and safety when applied to Jestina because Utah has irrationally squeezed ‘two professions into a single, identical mold,’ by treating hair braiders — who perform a very distinct set of services — as if they were cosmetologists. The scope of Jestina’s activities are distinct and limited when compared to cosmetologists. She does not use chemicals, shampoo, cut or color hair, or do facials, shaves, esthetics, or nails. Even if she were defined as a cosmetologist, the licensing regimen would be irrational as applied to her because of her limited range of activities. Most of the cosmetology curriculum is irrelevant to hairbraiding. Even the relevant parts are at best, minimally relevant.”

For the opinion, see here; thanks to How Appealing for the pointer.

Various defenders of the individual mandate have long argued that if the Court strikes down the law, it is likely to lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations. This meme has most recently been taken up by Jeffrey Rosen, who claims that striking down the mandate would be “resurrecting the pre–New Deal era of economic judicial activism with a vengeance.” Others have made similar claims, as I describe here.

I. Why there is no Doctrinal Connection Between Lochner and the Individual Mandate.

In reality, the individual mandate has no doctrinal connection to Lochner or any other economic liberties or property rights cases. I covered the reasons why in detail in this article (pp. 99-101). Co-blogger David Bernstein, a leading academic expert on Lochner, makes some additional relevant points here.

To briefly summarize, this case is different from Lochner for two reasons. First, Lochner restricted some types of economic regulations by the states as well as the federal government. If the Supreme Court invalidates the federal individual mandate because it is beyond the scope of congressional authority, states such as Massachusetts would remain free to adopt mandates of their own.

Second, even the federal government would still have extraordinarily broad authority to regulate actual economic transactions, including employment relationships, manufacturing, the purchase of goods and services, and so on. Congress would only be denied the power to impose mandates under the Commerce Clause in the absence of some preexisting “economic activity.” Even the Court’s most extreme previous Commerce Clause decisions – such as Gonzales v. Raich – would remain in force. I would be very happy to get rid of Raich, a dubious decision that concluded that Congress’ power to regulate interstate commerce allowed it to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market. But doing so isn’t necessary to strike down the mandate.

Conversely, if the Court upholds the mandate, that will in no way prevent it from strengthening enforcement of constitutional protections for economic liberties and property rights in future cases. Even if there are no enumerated powers limits to congressional authority under the Commerce Clause, that authority is still limited by the individual rights provisions of other parts of the Constitution. Many libertarians, including myself, believe that the Constitution imposes both stringent structural limitations on federal power and substantial individual rights-based ones. But it is perfectly possible for one to exist in the absence of the other. A decision upholding the individual mandate would not dictate the proper interpretation of the Takings Clause of the Fifth Amendment. Thus, it would not make it any less feasible for the Court to alter the questionable second class status of property rights in current doctrine.

It also would not dictate the correct interpretation of the Due Process Clausesof the Fifth and Fourteenth Amendments, or the Privileges or Immunities Clause. Thus, the Court could uphold the individual mandate, yet still (in future cases) enforce these clauses’ protections for economic liberties, which as David Bernstein and others have shown, are deeply rooted in the text and original meaning of the Amendment. And even if the Court did begin to protect property rights or economic liberties more strongly, it would not necessarily go as far as the pre-1930s Court did, which itself was not nearly as far as many modern liberals imagine (the Lochner-era Court upheld far more economic regulations than it struck down).

Indeed, the case for increased enforcement of individual rights constraints on Congressional power would be stronger if the Court ruled that there are no structural limitations on its authority to impose whatever mandates it wants. And that is the likely effect of a decision upholding the mandate.

II. Lochner as Epithet and Guilt by Association.

Some of those who raise the spectre of Lochner to attack the case against the individual mandate may not have any specific legal doctrine in mind. They might simply be using Lochner as a synonym for any decision striking down “economic” laws that they think are constitutional. If that’s the case, however, then the Lochner analogy is just a political epithet rather than a serious argument – much like Republicans calling Obama a “socialist.” As David Bernstein puts it in his important recent book on Lochner, it’s yet another example of commentators using the case as a “vacuous, rhetorical shortcut” for denouncing “what [they] consider the ‘activist’ sins of their opponents” even in situations where the legal issues in question have little or no connection to either Lochner or the Fourteenth Amendment. Conservatives have often used Lochner as an epithet themselves. So it’s understandable that liberals would do the same thing. But such rhetorical ploys are not substantive arguments.

Finally, there is the notion that the case against the individual mandate is discredited by its association with “radical” libertarian arguments against various other parts of the post-New Deal legal order. Some invocations of the Lochner analogy may be intended to reinforce this meme.

David effectively dismantles such guilt by association claims here. I would add that the case against the mandate has attracted support far beyond libertarian circles, “radical” or otherwise. The anti-mandate plaintiffs include 28 state governments and many private organizations, including many who are far from libertarian. It also has the support of most of the GOP and the vast majority of the general public. As a libertarian myself, I wish it were true that all of these people had suddenly bought into a broad libertarian agenda. In reality, however, their support for the case against the mandate is mostly a result of the fact that it’s perfectly possible to conclude that this law is unconstitutional without being either libertarian or an opponent of the entire post-New Deal legal regime.

UPDATE: I have made a few slight revisions to this post in order to increase clarity and correct a typo.

Two recent studies find that state licensing regimes for small businesses impose severe burdens on consumers and entrepreneurs alike. The first, by the libertarian Institute for Justice, finds that licensing is ubiquitous for a wide range of professions, and that it often has little or no public interest justification:

License to Work details licensing requirements for 102 low- and moderate-income occupations in all 50 states and D.C. It is the first national study of licensing to focus on lower-income occupations and to measure the burdens licensing imposes on aspiring workers....

All of the 102 occupations studied in License to Work are licensed in at least one state. On average, these government-mandated licenses force aspiring workers to spend nine months in education or training, pass one exam and pay more than $200 in fees. One third of the licenses take more than one year to earn. At least one exam is required for 79 of the occupations....

Noted licensure expert Morris Kleiner found that in the 1950s, only one in 20 U.S. workers needed government permission to pursue their chosen occupation. Today, it is closer to one in three. Yet research to date provides little evidence that licensing protects public health and safety or improves products and services. Instead, it increases consumer costs and reduces opportunities for workers....

the difficulty of entering an occupation often has little to do with the health or safety risk it poses. Of the 102 occupations studied, the most difficult to enter is interior designer, a harmless occupation licensed in only three states and D.C. By contrast, EMTs hold lives in their hands, yet 66 other occupations face greater average licensure burdens, including barbers and cosmetologists, manicurists and a host of contractor designations. States consider an average of 33 days of training and two exams enough preparation for EMTs, but demand 10 times the training—372 days, on average—for cosmetologists. “The data cast serious doubt on the need for such high barriers, or any barriers, to many occupations,” said Lisa Knepper, IJ director of strategic research and report co-author. “Unnecessary and needlessly high licensing hurdles don’t protect public health and safety—they protect those who already have licenses from competition, keeping newcomers out and prices high.”

The second new study – by Thumbtack.com and the Kauffman Foundation reinforces some of IJ’s conclusions. It consists of a nationwide survey of several thousand small business owners, and finds that, in their view, the ease of obtaining a license is the biggest public policy determinant of a state’s level of friendliness to small businesses – far more important even than tax rates:

Although taxes are a dominant topic in many discussions of a location’s attractiveness to business, our analysis indicates that small businesses tend to care more deeply about the friendliness of a region’s licensing regime by a factor of nearly two. Similarly, being subject to special regulatory requirements had a negative effect on overall small business friendliness, and among those small businesses subject to special regulations, the ease of complying with these requirements was by far the most important factor.

These results are not entirely surprising. Licensing regulations are often “captured” by interest groups seeking to keep out their competitors. Most voters are unaware of these laws and often lack the knowledge needed to assess their quality even when they do happen to know about them. As a result, licensing regimes are often heavily influenced by lobbying from politically connected businesses. Both consumers and potential new entrants into the market get the short end of the regulatory stick. It’s yet another example of the harm caused by political ignorance.

CONFLICT OF INTEREST WATCH: I have done pro bono work for the Institute for Justice on unrelated projects.

UPDATE: Economist Tim Taylor has additional commentary here.

UPDATE #2: I have revised this post slightly to eliminate some minor stylistic flaws.

Co-blogger Eugene Volokh links to the Free to Choose Foundation’s “What Milton Friedman Means to Me” video competition. The contest marks the occasion of the 100th anniversary of Friedman’s birth. I’m not very good at making videos, but Friedman did mean a great deal to me, as I explained in this 2006 post on the occasion of his passing:

Milton Friedman, who just passed away, was probably one of the two most influential economists of the last century, along with Keynes. Along with F.A. Hayek, Friedman also played a key role in rescuing libertarian and classical liberal political thought from the intellectual oblivion that threatened to engulf it in the period from roughly 1932 to the late 60s. Without Friedman and the scholars he influenced, it is possible that big government conservatism would have become the only intellectually respectable alternative to the left in the wake of the Great Depression and World War II.

In addition to his more technical scholarship in economics, Friedman also invented an impressive range of public policy proposals, many of which remain relevant today. For example, his 1955 essay “The Role of Government in Education” introduced the idea of school vouchers, which recent studies show provide far greater benefits to poor and minority students than any other potential education policy reforms. Friedman was also a longtime proponent of the volunteer military on both economic and individual rights grounds. The abolition of the draft in 1971 was partially a result of his advocacy and its influence on political conservatives (most of whom previously were inclined to support conscription). Other influential Friedman policy ideas include the negative income tax (on which today’s earned income tax credit is partly based), and – of course -the monetary rule.....

On a more personal note, reading Friedman’s book Capitalism and Freedom when I was 14 (recommended by my father) was one of the key influences that led me to become a libertarian. Along with Friedman’s later book Free to Choose, it remains the best introduction to libertarianism written for a general audience. Even 45 years [now 50 years] after initial publication, it is still highly relevant, with very few sections that today seem dated.

In this post, I commented on Friedman’s interesting explanation for the historically disproportionate level Jewish support for socialism. I also commented much more critically on Friedman’s much-quoted statement that “[y]ou cannot simultaneously have free immigration and a welfare state,” which I think is false. In fairness, as I noted in that post, Friedman was not an expert on immigration and does not appear to have studied the literature on that issue systematically.

For readers who may be interested, many of Vaclav Havel’s writings and speeches are available for free in English translation at his official website. Havel, who passed away on Sunday, was a great writer and the leader of the anti-communist dissident movement in Czechoslovakia. In addition to such classics as The Power of the Powerless, there are lesser known works such as “Stories and Totalitarianism” (1987), which includes the following interesting discussion of economic liberty:

The history of the system I live in has demonstrated persuasively that without a plurality of economic initiatives, and of people who participate in them, without competition, without a marketplace and its institutional guarantees, an economy will stagnate and decline....

When he can no longer participate with relative autonomy in economic life, man loses some of his social and human individuality, and part of his hope of creating his own human story.

I mention this now because although the standardizing and therefore nihilizing impact of political and intellectual centralization is clear, the analogous impact of economic centralization-as one of the indirect methods of manipulating life in general-is far from being so obvious. And that is what makes it more dangerous.

Where there is no natural plurality of economic initiatives, the interplay of competing producers and their entrepreneurial ideas disappears, along with the interplay of supply and demand, the labor and commodity markets, and voluntary employer-employee relations. Gone too are the stimuli to creativity and its attendant risks, the drama of economic success and failure. Man as a producer ceases to be a participant or a creator in the economic story, and becomes an instrument. Everyone is an employee of the state, which is the one proprietor of economic truth and power. Everyone is buried in the anonymity of the collective economic “non-story.”

When economic plurality disappears, the motives for competition in the marketplace of consumer goods disappear with it. The central power may talk all it wants about “satisfying differentiated needs” but the pressures of a nonpluralistic economy compel it to do exactly the opposite: to integrate production, standardize goods, and narrow the range of choice. In this artificial economic world, diversity is merely a complication.

Not only do consumers have to depend (as all who live in modern industrial societies do) almost exclusively on commodities they have not produced themselves; they do not have a choice of different commodities, and cannot express their individuality even in this limited way. All they have is what has been allocated by the monopoly producer: the same things that have been allocated to everyone.

Havel was no libertarian, and he favored a much larger economic role for the state than I would. But because of his experiences under communism, he understood the importance of economic liberty much better than most Westerners.

Another of my favorite Havel works is his 1990 speech delivered soon after becoming first post-communist president of Czechoslovakia:

For forty years you heard from my predecessors on this day different variations on the same theme: how our country was flourishing, how many million tons of steel we produced, how happy we all were, how we trusted our government, and what bright perspectives were unfolding in front of us.

I assume you did not propose me for this office so that I, too, would lie to you.

Our country is not flourishing. The enormous creative and spiritual potential of our nations is not being used sensibly. Entire branches of industry are producing goods that are of no interest to anyone, while we are lacking the things we need. A state which calls itself a workers’ state humiliates and exploits workers. Our obsolete economy is wasting the little energy we have available. ...

We had all become used to the totalitarian system and accepted it as an unchangeable fact and thus helped to perpetuate it. In other words, we are all – though naturally to differing extents – responsible for the operation of the totalitarian machinery. None of us is just its victim. We are all also its co-creators....

If we realize this, then all the horrors that the new Czechoslovak democracy inherited will cease to appear so terrible. If we realize this, hope will return to our hearts.

In the effort to rectify matters of common concern, we have something to lean on. The recent period – and in particular the last six weeks of our peaceful revolution – has shown the enormous human, moral and spiritual potential, and the civic culture that slumbered in our society under the enforced mask of apathy. Whenever someone categorically claimed that we were this or that, I always objected that society is a very mysterious creature and that it is unwise to trust only the face it presents to you. I am happy that I was not mistaken. Everywhere in the world people wonder where those meek, humiliated, skeptical and seemingly cynical citizens of Czechoslovakia found the marvelous strength to shake the totalitarian yoke from their shoulders in several weeks, and in a decent and peaceful way.....

We had to pay, however, for our present freedom. Many citizens perished in jails in the 1950s, many were executed, thousands of human lives were destroyed, hundreds of thousands of talented people were forced to leave the country. Those who defended the honor of our nations during the Second World War, those who rebelled against totalitarian rule and those who simply managed to remain themselves and think freely, were all persecuted. We should not forget any of those who paid for our present freedom in one way or another....

We must also bear in mind that other nations have paid even more dearly for their present freedom, and that indirectly they have also paid for ours. The rivers of blood that have flowed in Hungary, Poland, Germany and recently in such a horrific manner in Romania, as well as the sea of blood shed by the nations of the Soviet Union, must not be forgotten. First of all because all human suffering concerns every other human being. But more than this, they must also not be forgotten because it is these great sacrifices that form the tragic background of today’s freedom or the gradual emancipation of the nations of the Soviet Bloc, and thus the background of our own newfound freedom.

UPDATE: Unfortunately, many of the links to individual items on the Havel website don’t seem to be working properly. However, you can find these works yourself simply by going to the site yourself and looking for them.

Former Florida Governor Jeb Bush in the WSJ:

The right to rise doesn’t seem like something we should have to protect.

But we do. We have to make it easier for people to do the things that allow them to rise. We have to let them compete. We need to let people fight for business. We need to let people take risks. We need to let people fail. We need to let people suffer the consequences of bad decisions. And we need to let people enjoy the fruits of good decisions, even good luck.

That is what economic freedom looks like. Freedom to succeed as well as to fail, freedom to do something or nothing. People understand this. Freedom of speech, for example, means that we put up with a lot of verbal and visual garbage in order to make sure that individuals have the right to say what needs to be said, even when it is inconvenient or unpopular. We forgive the sacrifices of free speech because we value its blessings.

But when it comes to economic freedom, we are less forgiving of the cycles of growth and loss, of trial and error, and of failure and success that are part of the realities of the marketplace and life itself.

Protecting the freedom to engage in business is not the same as protecting business. Advancing the interests of politically connected capitalists does not advance capitalism. It’s a lesson many of those who claim to believe in free enterprise too often forget.

I was going to write a post about the Institute for Justice’s important recent victory in the bone marrow case. However, I see that co-blogger Eugene Volokh has beaten me to the punch, and said most of what I would have wanted to say.

I would add only that the sale of organs and medically necessary body parts (including bone marrow) can save many lives. I answered some of the standard objections to organ markets here and here.

In some ways, bone marrow markets are even more defensible than organ markets. Unlike transplanted organs, transplanted bone marrow grows back, and the donor avoids even the very modest long-term health risks that kidney donors undertake.

CONFLICT OF INTEREST WATCH: I have had the privilege of working with IJ on a number of other cases, but had no involvement in this one.

I’m delighted to report that Clark Neily of the Institute for Justice will be guest-blogging this week, about IJ’s “judicial engagement” project. IJ is one of the leading libertarian public interest law firms in the country, and I’ve always much respected their work.

As readers of this blog doubtless know, both conservatives and libertarians are split on the degree to which courts should act aggressively in reviewing legislation for constitutionality, as opposed to deferring to legislative action, especially in the area of so-called “substantive due process.” My sense is that different bloggers on this blog themselves disagree on this subject; and I suspect that I wouldn’t always agree with IJ’s broadest positions on this. But I much look forward to Clark’s explanation of IJ’s views, and I think our readers will find them interesting as well.

A few days ago, I was asked to participate in the New York Times Room for Debate forum on West Hollywood’s recent enactment of a law banning the sale of fur clothing. Here is an excerpt from my contribution:

West Hollywood’s ban on the sale of fur clothing is ultimately trivial because it will have little effect. Local residents who want to buy fur coats will simply drive to a neighboring town. Nonetheless, the law will raise an important constitutional issue: Whether it is permissible for the state to ban an economic transaction that does not harm any person or pose a threat to the community.

Under current Supreme Court precedent, the government can ban or restrict virtually any economic activity so long as there is some “rational basis” for the law, which could be almost anything. The Court even allows the government to make up justifications after the fact that the legislature did not consider when it enacted the regulation.

This highly permissive approach has allowed state and local governments to enact numerous laws that benefit organized special interests at the expense of the general public.....

In recent years, some federal courts have begun to recognize that the Fourteenth Amendment’s protection for “liberty” should have at least some teeth in economic liberty cases. There is growing recognition that economic freedom was one of the most important rights that the framers of the amendment sought to protect....

If the [West Hollywood] law is challenged, judges will probably conclude that there is at least some “rational basis” for it, such as the need to protect fur-bearing animals from overhunting....

Nonetheless, the debate over this case and others like it could help increase public awareness of the need to enforce constitutional protections for economic liberty.

Because I had only about 300 words to work with, I chose to address the constitutional economic liberty aspect of this issue, while leaving the animal rights question to other participants in the forum. For what it’s worth, my general view is that most animals (with the exception of highly intelligent primates, whales, and a few others) do not have rights that are binding on humans. However, for reasons I described here, I have some doubts about the validity of my view. It could be that my judgment on this issue is corrupted by self-interest – not because I particularly like fur clothing, but because I love eating meat. And if it is wrong to kill animals to make (nonessential) clothing, it seems equally wrong to kill them for the purpose of eating them if doing so isn’t necessary for our own survival. A possible way out of the dilemma is to conclude that killing animals for food or clothing is moral so long as we do so in ways that aren’t “cruel.” But it seems to me that any animal that has a right to be free of human-inflicted pain would also logically be entitled to a right to life.

None of this changes my view of the West Hollywood law. Even if animals are entitled to greater rights than I currently believe, that law still restricts economic liberty without providing any real benefits to either animals or humans. But the broader question of animal rights is a genuinely difficult moral issue that I continue to struggle with.

Some New Jersey state troopers got law degrees with the help of a state-sponsored loan repayment program.  Then sought to practice law on the side — doing wills, real estate closings, etc.  Then the State Ethics Commission for the Department of Law and Public Safety decided that it was unethical for troopers to engage in the private practice of law.  The troopers sued, alleging (among other things) that the prohibition violated their rights under the 14th Amendment.  Alas, their case did not get far, as the U.S. Court of Appeals upheld the restriction, finding that the state had a rational basis for concluding the rule would prevent some potential conflicts of interest.

(Hat tip: John Steele)

Thank you to The Volokh Conspiracy for allowing me to guest blog this week about economic liberty and the law. Economic freedom is one of the most crucial of human rights, and it is a shame that government violates this right in so many ways today, and with little serious opposition by the courts that are supposed to protect our rights.

Check out the new Right to Earn A Living book page, and if you haven’t joined our Facebook page, please do so today!

I hope readers will check out PLF Liberty Blog for more updates on the cases I and my Pacific Legal Foundation colleagues are litigating. Also, in the coming weeks I’ll be speaking at events across the country, and would love to meet any VC readers or PLF supporters. I’ll be speaking in Boston on Tuesday, Hartford on Wednesday, Portland and Brewer, Maine, on Thursday, and again in Boston on Friday. Check out the book page for a full schedule of future talks in those and other cities across the country.

Please also drop by my personal blog, Freespace, and Panda’s Thumb, where I sometimes write about creationsim/evolution issues.

There’s a surprising amount of great poetry about economic liberty; perhaps the most famous is Shylock’s comment in The Merchant of Venice, when Antonio recommends that the state confiscate Shylock’s property: “Nay, take my life and all; pardon not that: / You take my house when you do take the prop / That doth sustain my house; you take my life / When you do take the means whereby I live.” The Supreme Court quoted this passage in Adams v. Tanner, 244 U.S. 590 (1917), when it struck down a state law that outlawed employment agencies. While the government could certainly regulate such agencies to protect the public and to police against fraud or force, it could not “justify destruction of one’s right to follow a distinctly useful calling in an upright way.”

Other poets have celebrated economic dynamism; there’s Whitman’s evocative praise of American industry, and Sandburg’s ode to muscular Chicago; the New Deal’s insane restrictions on economic freedom led to Ogden Nash’s famous parody “One From One Leaves Two,” and also inspired a poem about the Shechter Poultry case by Mrs. Shechter herself.

But I’ve always most enjoyed Maya Angelou’s poem “Times Square Shoeshine Composition.” Although Angelou’s shoeshiner speaks ironically of capitalism, he is actually a prime example of the opportunity that free markets offer to people in his position, and Angelou’s warm celebration of his boastful pride in his work harmonizes remarkably well with Whitman’s mechanics and artificers. He really is a capitalist; an entrepreneur who has achieved a degree of self-reliance and pride that was, of course, totally denied to his ancestors. When he insists on the quarter and a dime instead of just a quarter, he brings to mind Frederick Douglass, who described in The Life And Times how he felt upon being paid for his first job after escaping from slavery:

I was not long in accomplishing the job when the dear lady put into my hand two silver half dollars. To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me — that it was mine — that my hands were my own, and could earn more of the precious coin — one must have been in some sense himself a slave…. I was not only a freeman but a free-working man, and no Master Hugh stood ready at the end of the week to seize my hard earnings.

Angelou certainly has valid reason to be ironic in her poem, but that irony doesn’t cloud the deeper truth of the shoeshiner’s free independence — which brings me to the case of Ego Brown.

Brown ran a shoeshine stand in Washington, D.C. — except that city ordinances prohibited the running of shoeshine stands on the sidewalks. Other kinds of merchants could sell things on the sidewalk; just not shoeshiners. The rule was a holdover from the days of Jim Crow, when white shoeshiners generally worked indoors, and thus used economic regulations to exclude competition from black shoeshiners who worked outside. Represented by the Institute for Justice, Brown sued, and a federal district court struck down the law under the rational basis test: “There must be at least some plausible connection between the ‘uniqueness’ of a bootblack and the purpose of the law. To find this connection, we would have to ‘strain our imagination’ beyond that which is required under the rational basis test to justify prohibiting bootblacks from the use of public space while permitting access to virtually every other type of vendor. Even the minimal rational basis test does not require the court to muse endlessly about this regulation’s conceivable objectives nor to ‘manufacture justifications’ for its continued existence.” Brown v. Barry, 710 F. Supp. 352, 356 (D.D.C. 1989).

Brown, who’s still shining shoes today, is Angelou’s creation brought to life — every bit as independent and admirable as his poetic counterpart.