George Will recently argued that it was unconstitutional for states to set maximum hour limits for certain workers, a view that the Supreme Court took in 1905, but repudiated in 1936. Will's argument also put him at odds with seven of the nine current Supreme Court justices, including Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Even Will himself once opposed the decision striking down maximum hour laws.
Now, Will has turned to attacking business regulation more generally. In today's Washington Post, without pointing to any provision in the Constitution to back him up, Will adopted the argument that "the Constitution protects the individual's right to earn a living free from unreasonable regulation." That might be all well and good in the abstract, but in practice, such a doctrine would put minimum wage laws (it would be unconstitutional to stop an individual from "earn[ing] a living" if she had decided to accept a job that pays $3 per hour), as well as child labor laws, at risk.
Vong, 47, left Vietnam in 1982, and after stops in Indonesia, Thailand, Taiwan and Hong Kong, settled in San Francisco and lived there for 20 years before coming here to open a nail salon with a difference. Her salon offered $30 fish therapy, wherein small fish from China nibble dead skin from people's feet. Arizona's Board of Cosmetology decided the fish were performing pedicures, and because all pedicure instruments must be sterilized and fish cannot be, the therapy must be discontinued. Vong lost her more-than-$50,000 investment in fish tanks and other equipment, and some customers. Three of her employees lost their jobs.
The plucky litigators at the Goldwater Institute are representing Vong in arguing that the Constitution protects the individual's right to earn a living free from unreasonable regulations. In a 1932 case (overturning an Oklahoma law requiring a new ice company to prove a "public need" for it), the U.S. Supreme Court said that the law's tendency was to "foster monopoly in the hands of existing establishments." The court also said:
"The principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense. . . . The theory of experimentation in censorship [is] not permitted to interfere with the fundamental doctrine of the freedom of the press. The opportunity to apply one's labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection."
Unfortunately, soon after 1932, New Deal progressivism washed over the courts, which became derelict regarding their duty to protect economic liberty.
The move to take us back to the Gilded Age started at the fringe, has moved to Fox News, and now has a prominent place on The Washington Post's op-ed page.