It seems that the prayers of economic libertarians might someday be answered. An opportunity to move back toward reinstituting the protections of economic freedoms (and away from the unbridled deference paid to police power legislation) has presented itself in the Great State of Louisiana.
This opportunity comes in the form of a Constitutional challenge, which may soon come before the Supreme Court, to the State’s restriction on the selling of caskets. The challenge was brought by the Brothers of Saint Joseph Abbey of the Benedictine Order of the Catholic Church.
Yes. Even the messengers of God must pay if they want to get in on an industry that has been secured for special interests by the powers that be (usually in exchange for political support).
You see, the brothers – who have mastered the craft of casket-making – decided to sell the renowned products of their labor and expertise in the marketplace by offering simple, elegant caskets at a lower cost than their competitors. No big deal right? Wrong. Apparently, Louisiana has a rather powerful funeral industry that successfully lobbied the state government to make sure that when it came to the business of selling caskets, they were the only game in town. That’s right. If you’re not a licensed funeral director who owns and operates a funeral home, it is a crime for you to sell a nicely-crafted wooden box anywhere in Louisiana.
If your intuitive response to this is to ask how in Sam Hill the government can get away with that kind of protectionist favoritism, the answer lies in two simple words: police power. This power to regulate in order to serve the end of promoting the health, safety and welfare of the public – once checked by courts willing to enforce sensible limitations on its exercise – has served as the default disguise of economic favors to special interests since the New Deal Court of the 1930s.
However, the practically-no-questions-asked approach of the police power-enlarging decisions and their progeny had a very famous (or infamous, depending on who you ask) predecessor in what is now referred to as simply the Lochner Era.
This era gets its name from Lochner v. New York – a case that liberals decry and libertarians long for – in which the Supreme Court struck down a New York state regulation limiting the number of hours a consenting adult could agree to work as a baker in any given day. New York, like many other state legislatures, claimed that its police power justified its intrusion on the freedom to contract. The Court saw through this veil, however, stating:
“It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?”
The Lochner Court believed that merely asserting that the act in question was remotely related to the public health did not necessarily render the enactment valid. The Court referred to legislative acts like the one before them as “mere meddlesome interferences with the rights of the individual,” and declared that they could not be “saved from condemnation by the claim that they are passed in the exercise of the police power… unless there be some fair ground reasonable in and of itself, to say that there is material danger to the public health…” (emphasis added).
In other words, it wasn’t enough for a legislature to simply say that an act was a justified exercise of the police power; it had to be able to demonstrate this. And, an inability to do so, according to the Court, would “give rise to at least a suspicion that there was some other motive dominating the legislature than the purpose to subserve the public health or welfare.” And, as evidenced by the Louisiana regulation at issue here, this healthy suspicion seems to have been well founded. And so the Court took the position that deference was not to be freely given to any and all legislative acts:
“The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined by the natural effect of such statutes when put into operation, and not from their proclaimed purpose.“
The audacity of the Court to scrutinize legislation for repugnancy to the Constitution was not something liberals were prepared to tolerate; and soon after Franklin Roosevelt won the presidency, his Supreme Court nominees took to lowering the bar for legislatures seeking to give out economic favors in exchange for votes.
The post-Lochner Court delivered blow after blow to economic freedom declaring (in Nebia v. New York) that when it came to police power legislation, “every possible presumption is in favor of its validity,” and (in United States v. Carolene Products, Inc.) that “the existence of facts supporting the legislative judgment is to be presumed.” Then there was Williamson v. Lee Optical of Oklahoma, which held that legislative acts passed via the police power “need not be in every respect logically consistent with its aims to be constitutional,” and that “it is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” (emphasis added).
The level of deference given to legislatures by the post-Lochner Court undermines the end of a Constitution through which the judiciary is supposed to function as a check on the actions of both the federal and state governments. Marbury v. Madison explained that it is the role of the Court “to say what the law is;” and this role includes scrutinizing regulatory schemes when they are challenged. The Constitution of the United States was meant to function more as a limit on what governments can do as opposed to a power-granting document that assumed a governmental role in nearly every aspect of American life. That is to say that a regulation or other legislative action does not become unconstitutional only when it is prohibited by the Constitution, but also when the power to enact such a law or regulation is not explicitly granted by the Constitution.
We have all seen the effects of the post-Lochner decisions on our country over the last 80 years: Oversized and inefficient governments made up of bureaucrats who gain power by making deals with special interest groups (particularly unions) to the detriment of taxpayers and consumers. Most importantly, these unchecked exercises of the police power have diminished economic liberty for all but the well-connected by creating barriers to entry into certain industries and raising prices on consumers – all as a means to an end that is often not achieved: an objective improvement in public health and safety.
Those who are fed up with an approach to judicial review of police power legislation that paves the way for the type of cronyism going on in Louisiana should welcome this opportunity for the Supreme Court to reinstitute the principle that your government ought to be required to objectively justify regulations that diminish liberty while fattening the pockets of special interest groups and union thugs.