After Patel: State Constitutional Law & Twenty-First Century Defense of Economic Liberty
The vast majority of today’s citizens have no inkling to what they owe their liberty and prosperity, namely a long and successful struggle for rights of which the right to property is the most fundamental.
When it comes to defending economic liberties and property rights in the modern era, the United States Supreme Court — the institution which Americans expect to defend their most precious liberties — has by and large completely failed. For the better part of seven decades, popular complacency toward the gradual chipping away of constitutionally guaranteed property rights ruled the day. But the bubble burst in 2005. The scale of the popular outrage in reaction to Kelo v. New London (opposed by up to 95% of Americans in polls taken that year) was most visible at the state level, as state legislatures and state courts in forty-five states rushed to establish stronger protections for property owner.
Thus, federal constitutional law’s folly became state constitutional law’s gain, making it clear that state constitutional law was a viable means to achieve greater protection for economic liberties than was possible through federal constitutional law, even in the context of interpreting similarly worded takings clauses. However, eminent domain and physical takings of property are but one category of economic liberties cases that concern constitutional law, both at the federal and state level. Moreover, protections against uncompensated takings of private property for private benefit are a specifically enumerated right in the constitutions of the United States and forty-nine States. In contrast, plaintiffs challenging occupational licensing restrictions and other protectionist laws must rely on unenumerated, constitutionally protected liberties in the constitution’s “glittering generalities,” such as the “due process of law,” equal protection,” or “privileges or immunities.”
Challenges to occupational licensing laws on the basis of state constitutions have been at the forefront of these efforts, with plaintiffs finding their greatest success at the Texas and Pennsylvania Supreme Courts in Patel v. Tex. Department of Licensing & Regulation and Ladd v. Real Estate Commission. Both states explicitly repudiated the “anything goes” hypothetical rational basis test that dominates at the federal level for judicial review of economic regulations in favor of a more demanding standard — all whilst asserting the importance of property rights in their state constitutions.
Perhaps even more importantly, however, the Texas and Pennsylvania courts’ willingness to assert greater judicial protection for economic liberties did not arise in a vacuum. Instead — in the context of the much more conservative Texas Supreme Court— it arrived amidst much greater willingness among originalist and conservative legal scholars to engage with greater judicial protection for unenumerated rights through doctrines like substantive due process. This represented a sea-change from the views of figures such as Justice Antonin Scalia and Judge Robert Bork, both of whom objected to substantive due process as a legal doctrine, and were partial to more deferential judicial review of legislation on separation-of-powers and institutional grounds.
