The story of unenumerated rights is a familiar one. Most law students learn it in their first year. During the Lochner era—the “bad old days”—the Supreme Court recognized a liberty of contract under the Fourteenth Amendment. It cited that liberty to strike down dozens of laws, including many state labor laws. It even invalidated major pieces of the New Deal. Incensed, President Franklin D. Roosevelt threatened to pack the Court with new Justices. The Court then backed down and abandoned economic rights. In their place, it discovered new “privacy” rights, including the rights to contraception, marital privacy, and reproductive freedom. 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.
Enter Judge Ho. No stranger to controversy, the Fifth Circuit judge drew unusual attention, even for him, with his opinion in Golden Glow Tanning Salon, Inc. v. City of Columbus. The case involved a challenge to COVID-19 business lockdowns. Judge Ho joined a decision rejecting the challenge. But in a concurrence, he lamented the continuing lack of judicial respect for economic rights. 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. For better or worse, the Supreme Court has chosen the latter path. 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.
Judge Ho’s argument didn’t come out of nowhere. It followed a surge of recent scholarship on economic rights and their historical roots. 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. The right grew out of judicial hostility to monopolies. In the 17th century, when the Crown started granting exclusive trade rights to private interests, English courts pushed back. The courts refused to recognize some monopolies, which they saw as unjustified limits on economic liberty. 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. That view then seeped into early American law, where it influenced the founding generation’s perspective on fundamental rights.
Similarly, the founders were also influenced by natural-law philosophy. Scholars like R.H. Helmholz, Stuart Banner, and Vincent Phillip Munoz have connected natural law to the founders’ concept of inalienable rights. In the founders’ view, certain rights belonged to the people by virtue of their status as human beings. And because these rights were inherent, people could not delegate power over them to government. Rights were, in that sense, beyond the government’s jurisdiction.
That concept helps explain what the founders meant by the Ninth Amendment’s famous phase, “certain 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. They believed that the federal government inherently lacked the power to interfere with natural rights. But in response to antifederalist critiques, they wrote that limitation directly into the text.
Farber and Lash differ over whether the Ninth Amendment was also meant to restrain the states. But as Randy Barnett and Evan Bernick have shown, the same limitation was eventually codified in the Fourteenth Amendment. 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. Similarly, the Due Process of Law clause was meant to protect against arbitrary deprivations of those rights. States could deprive people of their rights only by due process of law. But due process required states to act within their proper authority. And that authority did not extend to fundamental rights. 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.
But however well researched and well argued this scholarship has been, it still faces a major roadblock: the U.S. Supreme Court. Soon after the Fourteenth Amendment was adopted, the Court drained the Privileges and Immunities Clause of its vigor. In the Slaughterhouse Cases, the Court read the Clause as a redundancy: the rights it protected were only those of federal citizenship—rights already protected by other parts of the Constitution. And while the Court later recognized economic rights under the Due Process Clause, it sustained that view for only a few decades. In later cases like Nebbia v. New York, United States v. Carolene Products, and Williamson v. Lee Optical, it gave the government all but carte blanche to regulate economic affairs. It announced a standard of review—“rational basis”—so lacking in substance that commentators have compared it to judicial abdication. In short, even as the Court has continued to recognize some unenumerated rights, it has effectively abandoned economic ones.
The Court has, however, shown some signs of change. It has recently questioned its own privacy-based jurisprudence—most recently in Dobbs v. Jackson Whole Women’s Health. In place of that jurisprudence, it has refocused its analysis on history and tradition. It has said that going forward, it will recognize only rights with deep historical roots. And few rights have deeper roots than the right to work. In fact, its roots are much deeper than those of many rights already recognized by the Court. So if the Court takes this new historical focus seriously, the right to work may see new life.
Given how long economic rights have lain dormant, it’s hard to say how a revived right to work would change the legal landscape. But we can assume it would affect at least some labor regulations. In today’s highly regulated workplace, challenges to regulations are frequently brought, but infrequently succeed. Most are dismissed at the pleadings stage. With a revived right to work however, the success rate would surely improve. Some regulations would be pared back, if not struck down altogether.
Among the first to fall could be occupational-licensing schemes. Even under the current standards, groups like the Institute for Justice have successfully challenged some licensing schemes as lacking any rational connection to public health and safety. Instead, the schemes exist only to protect entrenched economic interests—much like the old English monopolies. If the Court were to recognize a right to work, that similarity could cause even more licensing schemes to unravel.
Similarly vulnerable would be agency fees. Agency fees are mandatory payments from nonmember employees to fund union activities. In Janus v. AFSCME, the Supreme Court struck down agency fees in the public sector. But Janus was based on the First Amendment; its rationale did not carry over to the private sector. A right to work could provide the missing constitutional link. It could recognize that all employees, public or private, have a right to pursue a lawful profession without unreasonable interference. Agency fees arguably interfere with that right by forcing people to choose between paying a third party and forgoing work altogether. If the right to work is truly fundamental, states could find that burden hard to justify.
In the same vein, exclusive union representation could be open to attack. Under federal law, a single union represents and bargains for all employees in a bargaining unit. The individual employees cannot bargain for themselves. In fact, if their employer tries to bargain with them directly, it commits an unfair labor practice. Exclusive representation therefore denies employees the right to bargain for their own terms and conditions. The Supreme Court once recognized that employees had a right to bargain for themselves. Burdening that right was a serious constitutional problem. The Court has long since backed away from that position. But if it were to revive the right to work, exclusive representation could again be on the chopping block.
These possibilities, of course, are only that—possibilities. They would have to be worked out through more investigation, more scholarship, and much more litigation. But even so, they show just how momentous a right to work could be. It could mark an epochal shift for the American labor market.
And that shift could come sooner than we might think. The Supreme Court is already considering at least one petition asking it to recognize the right to work. In Tiwari v. Friedlander, the petitioners are challenging a state “certificate of need” scheme. They say the scheme interfered with their right to run a home-services business. In other words, it interferes with their right to earn a living under the Fourteenth Amendment.
But even if the Court declines that petition, more are surely coming. If nothing else, Judge Ho’s concurrence makes sure of that. He has put the right to work on litigants’ radars. They will rely on his opinion, as well as the wave of recent scholarship, to bring new cases. And those cases will build on one another until the question demands a definitive answer. The Court may, eventually, have no choice but to weigh in.
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