Sandefur on The Right to Earn a Living

If you trace the lineage of this blog back to the early days of Positive Liberty, you will find (or would find if those archives were still online) that Timothy Sandefur was once one of Mr. Kuznicki’s co-bloggers. In the Reason.tv clip below, Sandefur, Pacific Legal Foundation attorney and author of The Right to Earn a Living, discusses the, um, evolution of 20th century Constitutional jurisprudence. As that’s always a topic of lively interest, I thought I’d re-post the clip and then sit back and watch it become grist for some of the more predictable mills in these parts. Enjoy:

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47 Responses to Sandefur on The Right to Earn a Living

  1. ppnl says:

    I found little to seriously disagree with here. It was interesting to see him blame judicial restraint on progressives. I think the problem actually goes deeper than that. All the way back to the founding in fact. Worse I’m not sure there is a solution even in principle. I don’t think it is possible to give government the power to do what it should do without giving it the power to do what it should not do.

  2. buddyglass says:

    What happened to the other blog, btw?

  3. Matty says:

    As I recall there were a series of problems with the web company that meant the site kept disapearing. Eventually Jason who owned the site decided he didn’t want the hastle involved in constantly trying to fix this. At that point James (or should I say Our Dread Soverign just to show I’ve been paying attention?) set up this blog and invited all the people writing for the old PL site to join, I also recall Sandefur had left a few years earlier but my memory is fuzzy on the circumstances.

  4. D.A. Ridgely says:

    Personally, I’m sticking to the story that confiscatory taxes and over-regulation led to its demise.

    (However, Matty is largely correct.)

  5. tom van dyke says:

    The “rational basis” review grew out of a 1938 Supreme Court case and essentially argues that as long as a government action can be “rationally tied” to a “legitimate” government interest, anything goes.

    Sandefur discusses the “four big Progressive ideas” that came about during the New Deal-era Supreme Court in the 1930’s. They include: 1) Rather than being inherent, rights are permissions given to individuals by the state; 2) Government exists to “improve” society, not to protect individual rights; 3) A reading of judicial restraint that means when government violates your rights, the courts should do nothing about it; and 4) Belief in a “living Constitution,” that will be radically reinterpreted in various contexts.

    1)-4) about covers it, although 3) deserves closer scrutiny as a blanket pronouncement.

    Also of interest per recent discussions hereabouts is that “rational basis” is now being used by the federal judiciary to strike down state or local prerogatives it doesn’t like, under the rubric that they aren’t “rational.”

    This of course, perverts federalism, which was designed to limit the central government, but not the states’ sphere of governance. [An attempt to make this explicit was the 9th and 10th Amendments, but there is no defense from Leviathan, at least not on paper.]

    Accordingly, via a Volokh.com post, we see the “Breyer” side of the Court using federal judicial power against the state legislatures

    http://volokh.com/2010/09/28/judicial-deference-to-congress-versus-judicial-deference-to-state-legislatures/

    with the Scalia side focusing its fire against Congress. [An approach, needless to say, I find more constitutionally congenial.]

  6. Mark Boggs says:

    I guess I find his condemnation of progressives as it relates to the Missouri moving company a bit strange. I understand the whole bureaucrat thing and I understand the government thinking it has a right to charge people fees on licenses that serve little more than to fill government coffers and discourage people from trying to start businesses, but does he really believe “progressives” are interested in letting all the other moving companies have a say in who gets to start another moving company? I’m “progressive” in a lot of ways, but letting existing businesses dictate whether they can have any competition seems silly. And I’ll bet the big wheels behind the existing moving comapnies had a whole lot more to do with lobbying for that silly regulation than “progressives.”

  7. buddyglass says:

    Why the name change? Couldn’t you have just migrated to a new hosting company?

    The above isn’t meant to be accusatory or critical; I’m just curious.

  8. James Hanley says:

    buddyglass,

    Oh, don’t you dare bring up the name issue! OK, you don’t know the dangerous ground you’re treading, so….

    (All in one big breath) In a nutshell, there was dissatisfaction with the old name, in part because it seemed to require too much explanation (since positive liberty is in fact a philosophical concept, but not one we generally adhere to, being all rather more in favor of negative liberty, but Jason originally, or so I’ve heard, wanted to emphasize a positive connotation to talking about liberty), and we couldn’t really come up with something that seemed really right to all of us (that wasn’t already taken by filthy internet squatters who got in line in front of us) so we came up with this name that also requires too much explanation and is not particularly beloved of anyone on this blog.

    Whew. A bottle of Laphroaig to the person who comes up with a brilliant name that every one of us so-called principles likes, and that will draw so much attention we’re counting our daily hits in the thousands instead of the hundreds.

    Which is not to suggest that I don’t like the community we have here. I absolutely delight in some of you folks, and wish we could all meet in the bar on Friday to do this all live.

  9. ppnl says:

    I for one loved the irony of the old name and don’t much care for the current name. But in the end it is just a name…

  10. Mr. Sandefur is on more solid ground when he talks about present-day examples, such as the moving-company situation in Missouri, although I share Mark Boggs’s questions about whether this is necessarily a “progressive” regulation. I also have questions of whether Mr. Sandefur would eliminate all regulations, or just the bad ones. If the latter, a line that appears arbitrary usually has to be drawn somewhere. I presume he would say the bias should be in favor of economic liberty for the individual. Still, it’s one thing to point out bad regulations like the Missouri example, and another to imply (as I believe he does, unless I am misreading too much into what he says) that all economic regulations need a higher degree of scrutiny than “rational.”

    I have many questions about Mr. Sandefur’s history.

    He says that “liberty” was an enumerated right, and he seems to state it was an enumerated right from the beginning. And it is, of course, mentioned in the 5th and 14th amendments, but it’s not clear that “liberty” means “economic liberty in all circumstances.” So again, it seems that a line would need to be drawn.

    He mentions the founders wishing to ensure economic liberty. There are, of course, the “gotcha” questions anyone could raise–what about the economic liberty of slaves? Of married women?–but there are other points to be mentioned, even if “slaves and women” are excluded, that suggests the “founders” did not believe economic liberty was absolute: the excise tax on whiskey in the 1790s, Jefferson’s “Embargo Act” and “Nonintercourse Acts,” the Merchant Seamen’s Act of 1813, and the tariff of 1816 (the first explicitly protective tariff, passed under Madison’s watch). I know Mr. Sandefur did not say that the “founders'” believed economic liberty to be absolute, but again, a line needs to be drawn.

    It may be true that the case Sandefur mentions in the 1930s formally and firmly established “rational basis” as a way to review state (and federal?) legislation, but wasn’t something like a “rational basis” implied as early as M’Culloch v. Maryland with its “let the means be legitimate….” phrasing?

    It also seems to me that Marshall’s activism against state laws (I don’t believe he overturned federal laws outside of Marbury, but I stand to be corrected) was based either on states’ alleged interference with the commerce clause (Gibbons v. Ogden….if I remember the case correctly) and, especially, states’ alleged interference with the contract clause (forbidding states to pass any laws that impair the obligations of contracts), and not on a notion of economic liberty. All this, of course, is pre-14th amendment, so I’m not being entirely fair to Mr. Sandefur.

    His critique of antitrust laws is well-taken, but local governments for a long time (see, e.g., the original charter of Chicago) had regulations that banned “forestalling the market” or otherwise cornering commodities. These I take to be one of the legal bases for what later became antitrust laws. The forestalling laws in England dated back at least to Elizabethan times.

    Local governments also played active roles in regulating places of public accommodation, such as inns.

    Mr. Sandefur claims that in England and America, since the 17th century, courts enforced economic liberty. But the state, especially in England, enforced certain regulations on people’s economic liberty through such mechanisms as the statute of artificers, statute of labourers (one is pre-Elizabethan and the other is Elizabethan, but I forget which is which), and the Speenhamland Acts.

  11. AMW says:

    Sandefur’s actually how I stumbled across this blog; or, rather, that blog that turned into this one. He was a college acquaintance, so when I saw his name linked at Reason’s H&R, I decided to look him up. Over time, I got hooked primarily on Kuznicki’s posts. So when Sandefur left (largely due to disputes regarding the Iraq War) I stuck around at PL.

    When PL went tits up, Hanley and DAR neglected to make any attempt at alerting me to the new stomping grounds. But luckily I was able to contact Babka, who clued me in. Better luck next time, ya bastards!

  12. James Hanley says:

    AMW,

    Ah, we just had faith in you. And we were proved right.

    Actually, because we actually lost the ability to access the blog ourselves, we couldn’t get to the dashboard where we would be able to see commenters’ email addresses, or I would certainly have contacted some of our good and regular folks. I will confess, though, that I knew where you worked and so I could have, and should have, let you know. My apologies. (But apparently my laziness had no negative effects, so…)

  13. James K says:

    Mark Boggs:

    but does he really believe “progressives” are interested in letting all the other moving companies have a say in who gets to start another moving company? I’m “progressive” in a lot of ways, but letting existing businesses dictate whether they can have any competition seems silly.

    The early progressives had a lot of anti-competitive beliefs – often they viewed multiple competing firms as “wasteful duplication”. Leaving that aside, at some point one has to own the outcomes of one’s idea whether they were intended or not. Government (like any institution) has flaws, and anything government does (or anything someone wants government to do) must be evaluated in terms of how a real government will implement it, not some ideal government that does not, and cannot exist.

    The early progressives may have envisioned philosopher kings, but what they were never going to get that, and it was foolish of them to think they would.

  14. AMW says:

    Damn it all, Hanley, you know I can’t stay mad at you!

    DAR, on the other hand . . .

  15. AMW says:

    Oh, and I always thought that Novus Ordo would be a good name for a blog.

  16. ppnl says:

    So when Sandefur left (largely due to disputes regarding the Iraq War) I stuck around at PL.

    Before my time. Someone wanna fill me in on the gossip? What was the disagreement about?

  17. Mark Boggs says:

    James K:

    I’m certainly not in an intellectual position to debate the history of the early progressive movement, but his criticism is of a current or relatively recent bit of red tape in Missouri. And maybe I’m being a bit too sensitive about his condemnation of progressives, but it struck me as odd that the Missouri instance he noted sounds much more like businesses running a bit of a cartel through making it near impossible for anyone else to open the same kind of business rather than “do-gooders” trying to fix a problem that doesn’t exist.

  18. James Hanley says:

    AMW,

    I’m an anabaptist who grew up in a largely Catholic town. Novus Ordo just ain’t happenin,! (Amazingly, I had, and still have Catholic friends. Now those Lutherans, on the other hand…)

  19. Re: “Progressives” and competition:

    It seems to me that there was a strain of what some historians now call “progressivism” that was anticompetitive and that supported cartels (Brandeis tended to have supported cartels, at least among what he deemed smaller businesses).* This strain was one of forces behind the National Recovery Administration under FDR, which effectively made cartels in some industries enforceable (Brandeis, interestingly, voted to declare the NIRA unconstitutional, but I’m not sure what he rationale was).

    But there were also other strains of what some historians call “progressivism” that at least rhetorically supported “competition,” although it’s sometimes a trick of art to figure out what “competition” meant to them. Wilson’s “New Freedom” platform, on which he ran for the presidency in 1912, was premised on “restoring” competition. It’s unclear, to me, what he meant, and he certainly wasn’t adverse to Brandeisian thinking, given that Brandeis was an advisor of his and that he appointed Brandeis to the Court.

    Others who some historians call progressives opposed “monopoly” and “the trusts,” at least rhetorically. I’m thinking, for example, of LaFollette of Wisconsin or William Shafroth of Colorado. Others, like Theodore Roosevelt, spoke out for the open shop (although he sometimes spoke out against it), and whatever one’s views of unions and competition, an “open shop” system is more competitive than a “closed shop” or “union shop” system.

    I say “what historians call progressivism” because I find it hard to identify any single “progressive” movement or any criteria for what counted as a “progressive” beyond supporting “reform” of some sort. I suspect that simply stating that such and such an ideal was “progressive” is more an attempt to cherry pick examples to discredit what are really varied, and complicated movements and streams of thought.

    I agree with Mr. Sandefur that these reformers probably had in common, to the extent the had any thing in common, a distaste for judicial activism, and I attribute this distaste to the fact that they wanted to enact their reforms through legislation and not litigation.** Some “progressives” (if I recall correctly, Richard Ely was one of them) favored sociological jurisprudence, or the use of empirical evidence to establish points of law. Although, to my knowledge, such tactics were originally used to try to convince courts not to strike down legislation (cf. the “Brandeis brief” in Muller v. Oregon), such jurisprudence could be used–and was used in Brown v. Board–to countenance judicial activism.

    *See, for example, Thomas McCraw, Prophets of Regulation. His section on Brandeis.

    **Even so, this is a broad generalization. The NAACP, founded by antiracist black and white progressives, devoted itself, at least by the 1930s, to challenging segregation laws in the courts.

  20. James Hanley says:

    Progressives distrusted capitalists, but their approach to constraining them varied. Some wanted cartels, because they could be more easily regulated. Others wanted strictly regulated competition that prevented “anti-competitive” behavior (which is often just uber-competitive behavior–that’s what Microsoft fell afoul of). The logic, such as it was, behind that was that ultra-competitive behavior is ultimately anti-competitive because its purpose is to eliminate competition and create a monopoly.

    That’s why we get weird anti-trust law that both punishes and promotes cartel-like behavior, and both punishes and promotes competitive behavior. * I know many anti-trust lawyers fervently believe in America’s anti-trust laws, but I’ve rarely met an economist who found them even mildly sensible.

    ________________________________
    * In case there’s some here who haven’t heard this old joke, three businessmen are sitting in jail, and they ask each other what they’re in for.

    The first one said, “I’m in here for anti-competitive behavior. I charged a lower price than my competitor.”

    The second one said, “That’s curious. I’m in here for price-gouging. I charged a higher price than my competitor.”

    The third one said, “That’s all very strange, because I’m in her for price-fixing. I charged the same price as my competitor.”

  21. Mark Boggs says:

    Yeah, I suppose the confusion comes when trying to use the same word over time even though it might mean totally different things over that period. I suppose if one wanted to use it as a pejorative, wouldn’t today’s progressive just as soon collectivize the whole moving industry and let the state run it?

  22. AMW says:

    I’m an anabaptist who grew up in a largely Catholic town. Novus Ordo just ain’t happenin,!

    Well then, between you and me, don’t go looking too closely at the back of any one dollar bills.

    ppnl,

    It was before almost anybody’s time. Jon Rowe’s the only principle left who was around (unless you count Kuznicki, but his position now seems to be mostly an honorary one). At the time, the authors were Kuznicki, Rowe, Sandefur and Brayton (but Brayton posted only intermittently). So when Sandefur left there were only two really active bloggers. If I infer correctly, that’s why Kuznicki invited Hanley, DAR and Babka to join.

    As for the nature of the dispute itself, a lot of the evidence went down the memory hole with Positive Liberty. But you can find Sandefur’s side of the story (with unfortunately defunct links to PL) here and here.

    For what it’s worth, I typically found myself in agreement with Kuznicki on the war. I also tended to find Sandefur to be pretty sensitive/defensive on the topic, and not a little shrill.

  23. James Hanley says:

    If I infer correctly, that’s why Kuznicki invited Hanley, DAR and Babka to join

    In my case, it was blackmail. But they agreed to let me join, so I can’t tell you what kind of dirt I have on them.

  24. James Hanley says:

    AMW wrote,

    between you and me, don’t go looking too closely at the back of any one dollar bills.

    Running through my list of possible responses….

    “Not a problem. I never carry anything smaller than a fifty anyway.”

    “I have three children. You really think I have any cash left to look at?”

    “$1 bill? Cash? How quaint. Most of us are in the cashless society these days.”

    Take your pick–use whichever one manages to brighten your day a little bit.

  25. AMW says:

    “Not a problem. I never carry anything smaller than a fifty anyway.”

    Then on a poli sci professor’s salary you must not carry anything, period.

    “I have three children. You really think I have any cash left to look at?”

    I’ve got four. But I find that “I’ll pay you with a kiss” works both ways at their age.

    “$1 bill? Cash? How quaint. Most of us are in the cashless society these days.”

    I’ll thank you not to be so flippant about the Great Recession.

  26. AMW says:

    How old are your kids, by the way?

  27. James Hanley says:

    AMW,

    13 (on Wednesday), almost 10, and just turned 8. And they are indeed, like Mary Poppins, practically perfect in every way.

    Yours?

  28. AMW says:

    6, 4, almost 3, and 7 months. Each a delight.

  29. James Hanley says:

    In other words, you get great utility from your kids? *grin*

  30. AMW says:

    I’ll go further than that. The first derivative of my utility function with respect to their utility is positive.

    But the second derivative is negative…

  31. Johanna says:

    Uh James – that would be 13 tomorrow (Thursday) or you would have missed it and you’d have one mad teenager to come home to tonight.

  32. James Hanley says:

    Ah, I thought you were going to say that the first kid was great, the second pretty good, and so on, and I was getting all ready to sympathize with your fourth and youngest (as a fourth and youngest myself).

    And, yes, I should say Thursday. At least I had the date right for my daughter.

  33. AMW says:

    Ah, I thought you were going to say that the first kid was great, the second pretty good, and so on, and I was getting all ready to sympathize with your fourth and youngest (as a fourth and youngest myself).

    I’m an economist, not a monster….

    Also, some goods have super-additive consumption value; there, I said it.

    p.s. Thread officially jacked.

  34. James K says:

    Mark Boggs:

    but it struck me as odd that the Missouri instance he noted sounds much more like businesses running a bit of a cartel through making it near impossible for anyone else to open the same kind of business rather than “do-gooders” trying to fix a problem that doesn’t exist.

    Policies of this nature are often “Baptist and Bootlegger” coalitions, consisting of sincere groups wanting to make things better, and special interests wanting to enrich themselves. Without the moral cover the Baptists provide, the Bootleggers find it hard to advance their agenda.

  35. Matty says:

    “Personally I’m sticking to the story that confiscatory taxes and over regulation led to its demise”

    Oh did I miss out the bit where your government subsidy was withdrawn?

  36. James Hanley says:

    AMW:

    I’m an economist, not a monster….

    Yeah, that’s what every economist says to help themselves sleep at night. *grin*

    Matty:

    did I miss out the bit where your government subsidy was withdrawn?

    Yep. A trillion dollar deficit, but who’s not good enough to subsidize anymore? It’s all politics, I tell you, all politics.

    JamesK:

    Policies of this nature are often “Baptist and Bootlegger” coalitions

    Is this really as common as you (and I) think? I’ve been sort of casually surveying the issue for a few years now, and I have a developing suspicion that the B&B coalition may only develop in special circumstances, rather than being a frequent phenomenon. I ask because I’m truly curious about this. I have no doubt about the existence of the phenomenon itself, but I’m not sure I see it specifically happening a lot, and being libertarian minded I see a risk of using it over-broadly, in a more ideological than analytical fashion. I’m open to persuasion that it’s more common than I suspect, but currently I’m somewhat agnostic on the issue of its frequency.

  37. On the Missouri issue, it seems very fishy, especially if the rules, as Mr. Snandefur says, in question give competitors an effective veto over (or make it harder to set up) new businesses.

    But I would like to know the rationale behind this regulation and what supposed evils it is supposed to combat, as well as how effectively it combats those evils. I can imagine one purported advantage of requiring that all movers be “licensed” is to make movers more accountable and responsible. I have heard stories (always at least thirdhand, and never corroborated with more than hearsay evidence) that in Chicago, movers sometimes load up the truck and then demand an extra payment beyond the agreed price before unloading the goods. I can imagine someone supporting restricting entry of movers if by so doing only “legitimate” movers who will not extort customers are available for customers.

    I’m not necessarily endorsing such policies or the rationale for them (if that, indeed, is the rationale). And even if they work as advertised–which they might not–they would still probably have the function of shutting out would-be entrepreneurs of modest means. But the issue is probably not so clearly and unambiguously a campaign against the poor people and immigrants that Mr. Sandefur champions. And the reasoning behind these rules is probably not necessarily as arbitrary as Mr. Sandefur suggests.

    (Historians are usually better at putting things in context than they are at actually coming to conclusions about the best policies. I guess I just want more context, even if I end up agreeing with everyone that the Missouri situation is bad.)

  38. ppnl says:

    My father owned an air conditioning company back in the 70s. The problem he faced was “gypsy” operators who would come in with a truck load of equipment from who knows where and no overhead. They would do a few jobs and be gone with no support for the warranties and nobody to sue for the bad job. It was a boom and bust situation anyway. With Gypsies taking the top off the booms it became impossible for the small operators to survive the busts. Eventually he just shut down and took a job at a power plant.

    What this situation eventually produces is a few large operators and a bunch of gypsies. Then the large operators are in a position to exert political influence to achieve regulatory capture. They do so with the help of a lot of pissed off people who got ripped off.

    The thing is I don’t see any solution to this problem. There is no magic philosophy to prevent this kind of thing. If you give government the power to do what it should you also give it the power to do what it shouldn’t.

  39. James K says:

    James Hanley:

    Yeah, that’s what every economist says to help themselves sleep at night. *grin*

    I don’t, I just decided to take the whole monster thing and run with it, hence my avatar 😉

    Is this really as common as you (and I) think?

    It’s a fair question. I may focus on it too heavily because I special in environmental and trade economics, and those are areas with strong B&B presence, I remember reading a number of case studies at university. Also, in New Zealand government is less vulnerable to lobbying so the moral cover is probably more important than it is in the US. Of course, there’s always simple misguided good intentions to consider too, perhaps the special interest pops up later once the policy has created a group of beneficiaries.

    Pierre Corneille:
    I’m a policy economist by trade and I can’t conceive of a valid reason to implement such a restriction. Whatever they’re trying to accomplish, there’s a better way of doing it.

  40. D. C. Sessions says:

    A bottle of Laphroaig to the person who comes up with a brilliant name that every one of us so-called principles likes, and that will draw so much attention we’re counting our daily hits in the thousands instead of the hundreds.

    More of an Ardbeg fan meself (as long as we’re trying to start flamewars!)

    However, the best name I came up with was on a different topic (“TwilightOfEmpire.”) Now, should anyone care to join me in discussing that topic it might be worth actually populating the domain; for now it’s just parked.

  41. James Hanley says:

    D.C. Sessions is here?! How delightful! And a great blog name, but perhaps outside my area.

  42. D. C. Sessions says:

    D.C. Sessions is here?! How delightful!

    You flatter me, Sir. I’d have dropped by earlier but you don’t advertise much.

  43. James Hanley says:

    I’d have dropped by earlier but you don’t advertise much.

    We’re like a secret nightclub that never advertises, and pops up in new places all the time, so that only the cognoscenti can find us. Of course the bouncer let you in past the velvet ropes.

  44. Pierre Corneille:
    I’m a policy economist by trade and I can’t conceive of a valid reason to implement such a restriction. Whatever they’re trying to accomplish, there’s a better way of doing it.

    You may very well be right. But I wrote what I wrote about “context” because I don’t particularly trust Mr. Sandefur’s rendering of what, exactly, the Missouri policy is. His statements during the interview presented on YouTube seemed (to me) so misleading when it came to his historical examples that I was (and am) suspicious of the claim he made about the Missouri law. I don’t mean this as a knock on his honesty. He is, after all, representing the people who claim to have been damaged by his policy, and it would probably violate his clients’ interests if he were to give the other side’s case on a public forum.

    Still, if it is truly the case that competitor movers have, for all intents and purposes, a veto on who may and who may not enter the trade, then it seems to me like a bad law. (It may be a bad law for other reasons, but that was the primary reason that Mr. Sandefur gave.)

  45. D. C. Sessions says:

    Taking the uncertainty of Missouri and the accuracy of description of its law out of the question, consider the matter of auto dealerships. Most states restrict entry of new dealerships into a given market by allowing existing dealers to challenge proposed new ones in a special hearing.

    Reference Walden , Michael L. 2005 Do Geographic Entry Restrictions Increase Car Prices?, The Review of Regional Studies Vol. 35 No. 2 (and the handy list of references.)

  46. D. C. Sessions,

    Thanks for the reference!

  47. D. C. Sessions says:

    De nada.

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