by Jon Sanders
Director of the Center for Food, Power, and Life, Research Editor, John Locke Foundation
The final finding behind the Right to Earn a Living Act logically ties the preceding findings into the justification for the legislation. It holds:
(5) It is in the public interest:
(a) To ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition;
(b) To provide the means for the vindication of this right; and
(c) To ensure that regulations of entry into businesses and professions are demonstrably necessary and carefully tailored to legitimate health, safety, and welfare objectives.
All those things are in the “public interest.” To call it that is to assert that the awesome power of government must back the following efforts.
The first part is to “ensure the right of all individuals” to pursue what has been attested to in the first finding as a “fundamental civil right,” or in the words of the North Carolina State Constitution, an inalienable right.
An inalienable right is forever bound up within the existence of each individual. Individuals and inalienable rights are a package deal, so to speak. Not only can government not separate them, but as John Locke argued, preserving them is the utmost use of state power.
The second part is to “provide the means for the vindication of this right.” As evidenced by the third finding, there can arise a public dispute over whether an entry regulation restricting particular “entrepreneurial and professional opportunities” is legitimate or arbitrary.
Individuals need a clear way to challenge entry regulations at the administrative level as well as in the courts. They need clear standards by which the regulations may be judged. Those standards must be based on the inescapable fact that the regulations affect a fundamental civil right.
In other words, individuals challenging the regulations need the standards by which those regulations will be judged to be strongly weighted in favor of preserving the right to earn a living, except in the case of certain limited and rare circumstances.
The third part is therefore to “ensure that regulations of entry into businesses and professions are demonstrably necessary and carefully tailored to legitimate health, safety, and welfare objectives.”
So the necessity of the regulation cannot be merely asserted, it must be demonstrated. It cannot be slap-dash but carefully tailored, meaning it would be subject to strict scrutiny, the most difficult level of judicial scrutiny. The courts would apply this scrutiny to determine whether the entry regulation was made to fit only three kinds of objectives: health, safety, and welfare. And those objectives must withstand strict scrutiny to be found “legitimate.”
Future entries in this series will examine how the Right to Earn a Living Act would translate its findings into practical law.
Posts examining the Right to Earn a Living Act:
Part 1: A fundamental civil right
Part 2: A well-known path up from poverty
Part 3: Legitimate vs. arbitrary regulation
Part 4: Fewer jobs, higher prices
Part 5: Greater burden for poor workers and consumers
Part 6: Three main objectives
Part 7: Defining the terms
Part 8: A very high bar
Part 9: Defending the decision to license
Part 10: Challenging the decision to license
Epilogue: Securing rights on the local level, too