This has been a big week for fans of state constitutional law. Georgia and Pennsylvania joined the growing chorus of state supreme courts recognizing that their respective constitutions protect economic liberty—and Pennsylvania held that its constitution provides greater protection than its federal counterpart.
Economic liberty is the natural right to pursue a lawful occupation free from unreasonable government interference. It is crucial to anyone who wants to start a business or find a new job. It was also important to our nation’s founders, and it later became one of the driving forces behind the Fourteenth Amendment. But under current U.S. Supreme Court precedent, this key right is subject to the (in)famously lenient rational basis test, resulting in minimal judicial protection.
Thankfully, that’s not the last word on the subject. State constitutions and state supreme court precedent can provide greater protections than their federal counterparts. And many have, with the Texas Supreme Court’s decision in Patel v. Department of Licensing and Regulation providing one of the most-famous examples. In two cases litigated by the Institute for Justice, Pennsylvania’s high court expressly joined Texas, and Georgia’s Supreme Court reaffirmed that its state constitution protects the right to earn an honest living as well but left open the question of whether Georgia will apply a more engaged standard of review.
On Monday, Georgia’s Supreme Court decided Jackson v. Raffensperger, holding that the Georgia Constitution protects “a right to work in one’s chosen profession free from unreasonable government interference.” The Appellants, Mary Jackson and her non-profit organization, Reaching Our Sisters Everywhere, Inc. (ROSE), provide lactation care for clients. Simply put, Mary engages in the timeless human practice of assisting mothers learning to breastfeed their babies. And she has performed this service for decades. But in 2018, Georgia enacted a law that made it illegal for Mary and ROSE to provide these services without obtaining a burdensome license.
Mary challenged the licensing requirement as a violation of the Georgia Constitution’s due process and equal protection clauses. The trial court dismissed, holding that Mary’s right to practice her chosen profession was not protected by the Georgia Constitution. But the Georgia Supreme Court held otherwise. The Court emphatically stated “we have long recognized that the Georgia Constitution’s Due Process Clause entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference.” As such, the Court reversed the trial court on both the due process and equal protection claims—sending Mary’s case back to the trial court and allowing her economic liberty challenge to proceed.
On Tuesday, the Pennsylvania Supreme Court decided Ladd v. Real Estate Commission, an as-applied constitutional challenge to Pennsylvania’s real-estate licensing requirements. For years, Sara Ladd worked from her home in New Jersey assisting clients in the Pocono Mountains rent their properties on sites like Airbnb. That all changed when Pennsylvania’s Bureau of Occupational and Professional Affairs informed her that she was engaged in the “unlicensed practice of real estate” and would have to get a license or close up shop. To get a license, Pennsylvania requires 315 hours of coursework, a three-year apprenticeship, and maintaining a brick-and-mortar store front. But none of these regulations—which are focused on the traditional practice of real estate (i.e., buying and selling houses)—have much to do with Ms. Ladd’s actual work. Her services involve rentals lasting only a few days, costing a few hundred dollars, and she works entirely online. Nevertheless, the trial court dismissed Ms. Ladd’s case, holding that the regulations were constitutional because, even though they had little to do with Ms. Ladd’s work, they were a rational way to regulate people who bought and sold property for a living.
The Pennsylvania Supreme Court reversed. The Court recognized that Article I, Section 1 of Pennsylvania’s Constitution includes “the right to pursue a chosen occupation.” To protect this right the Court applied a “heightened rational basis test” that requires the government demonstrate an exercise of its police power is (1) “not unreasonable, unduly oppressive, or patently beyond the necessities of the case” and (2) that it “bears a real and substantial relation to the purported policy objective.” Digging into the regulation’s burdens on Ms. Ladd, the Court found that the hundreds of hours, years of apprenticeship, and brick-and-mortar requirement applied to Ms. Ladd’s business model present a colorable claim that the requirements are “unreasonable, unduly oppressive, and patently beyond the necessities of the case.” And the Court held that the State did not show “without a doubt” that the “requirements bear a real and substantial relation to the statutory goal of protecting the public from fraud.” Now Ms. Ladd’s case is being remanded to the trial court, allowing her to proceed towards the full vindication of her right to earn an honest living.
Although the federal courts have abdicated their duty to follow the original meaning of the U.S. Constitution’s protections for economic liberty, state courts need not make the same mistake. The United States contains not 1 but 51 constitutions, each with unique protections for individual liberty. The Georgia and Pennsylvania Supreme Courts have recognized that their constitutions provide meaningful protection for the right to earn an honest living. Not only is this the legally correct approach, but it’s good news for America’s entrepreneurs at a time when they could really use it.