Soon after the Fourteenth Amendment was adopted, the Court drained the Privileges and Immunities Clause of its vigor. So an act infringing fundamental rights was not, strictly speaking, a “law.” Regardless of formal process, states could not properly deprive people of their rights-including the right to earn a living.īut however well researched and well argued this scholarship has been, it still faces a major roadblock: the U.S. And that authority did not extend to fundamental rights. But due process required states to act within their proper authority. States could deprive people of their rights only by due process of law. Similarly, the Due Process of Law clause was meant to protect against arbitrary deprivations of those rights. In a recent book, they explain that the Privileges and Immunities Clause was originally meant to protect rights deeply rooted in the American legal tradition. But as Randy Barnett and Evan Bernick have shown, the same limitation was eventually codified in the Fourteenth Amendment. But in response to antifederalist critiques, they wrote that limitation directly into the text.įarber and Lash differ over whether the Ninth Amendment was also meant to restrain the states. They believed that the federal government inherently lacked the power to interfere with natural rights. retained by the people.” Scholars like Kurt Lash and Daniel Farber have shown that the founders intended the Ninth Amendment to shield natural rights against federal interference. That concept helps explain what the founders meant by the Ninth Amendment’s famous phase, “certain rights. Rights were, in that sense, beyond the government’s jurisdiction. And because these rights were inherent, people could not delegate power over them to government. In the founders’ view, certain rights belonged to the people by virtue of their status as human beings. Helmholz, Stuart Banner, and Vincent Phillip Munoz have connected natural law to the founders’ concept of inalienable rights. Similarly, the founders were also influenced by natural-law philosophy. That view then seeped into early American law, where it influenced the founding generation’s perspective on fundamental rights. They insisted that every person had a right to pursue a lawful profession, and that monopolies interfered with that right by barring them from entering certain trades. The courts refused to recognize some monopolies, which they saw as unjustified limits on economic liberty. In the 17th century, when the Crown started granting exclusive trade rights to private interests, English courts pushed back. The right grew out of judicial hostility to monopolies. For example, writers like Bernard Siegan and Timothy Sandefur have shown that economic rights, including the right to earn a living, were embedded in the English common law. It followed a surge of recent scholarship on economic rights and their historical roots. Judge Ho’s argument didn’t come out of nowhere. But if the Court is going to recognize unenumerated rights, then economic rights-in particular, the right to earn a living-have as good a claim as any right to constitutional protection. For better or worse, the Supreme Court has chosen the latter path. He argued that there are two ways to read the Constitution: one that recognizes only enumerated rights, and one that recognizes rights based on some principle outside the text. But in a concurrence, he lamented the continuing lack of judicial respect for economic rights. Judge Ho joined a decision rejecting the challenge. The case involved a challenge to COVID-19 business lockdowns. No stranger to controversy, the Fifth Circuit judge drew unusual attention, even for him, with his opinion in Golden Glow Tanning Salon, Inc. And while the Court has now started to pare those privacy rights back, it has refused to revive the liberty of contract-or any other economic rights.Įnter Judge Ho. In their place, it discovered new “privacy” rights, including the rights to contraception, marital privacy, and reproductive freedom. The Court then backed down and abandoned economic rights. Roosevelt threatened to pack the Court with new Justices. It even invalidated major pieces of the New Deal. It cited that liberty to strike down dozens of laws, including many state labor laws. During the Lochner era-the “bad old days”-the Supreme Court recognized a liberty of contract under the Fourteenth Amendment. Most law students learn it in their first year. The story of unenumerated rights is a familiar one.
0 Comments
Leave a Reply. |
Details
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |