Academic journal article Independent Review

The Common Law Right to Earn a Living

Academic journal article Independent Review

The Common Law Right to Earn a Living

Article excerpt

The monopolizer engrosseth to himself what should be free to every man.

--Sir Edward Coke (1)

At the common law," wrote William Blackstone, "every man might use what trade he pleased" ([1765] 1979, 1:415). This seemingly innocuous phrase, dropped offhandedly into a chapter on the obligations of master and servant, hints at a rich common-law tradition that has in large part been ignored, or even denied outright, in more modern scholarship. In fact, since the New Deal, the prevailing view among legal scholars has been that the right to earn an honest living as one chooses, without government interference, does not exist at all and that the "Lochner era" (1906-37), when the Supreme Court struck down numerous state laws infringing on this right, was a time of judicial usurpation during which the Court merely invented this right without precedent or legitimacy. Consider, for example, the words of one scholar quite representative of most legal scholars today:

   I do not count the Supreme Court decisions defending contract or property
   rights from state regulations as Bill of Rights decisions. None of these
   cases represents a defense of civil liberties. The Court merely used
   libertarian philosophy to protect the wealthy from progressive legislation.
   The Court eventually rejected these economic liberty decisions because they
   were not connected with the text of the Constitution or any philosophy with
   roots in the history and traditions of our nation and its democratic
   process. (Nowak 1992, 452)

My research, however, reveals that this prevailing view is incorrect. In fact, the right to earn a living was protected at common law as far back as the Magna Carta (1215), and the decisions that voided economic regulations actually rested on solid historical ground. The economic substantive-due-process cases did not announce principles unknown to legal history, nor were the judges who accepted this doctrine legal interlopers going beyond reasonable readings of precedent. Instead, the New Deal's repudiation of protections for economic liberties was the new, ahistorical reading of the law and one that has proven itself to be fallacious and dangerous.

Before Lord Coke

Section 41 of the Magna Carta (1215) held that

   All merchants are to be safe and secure in leaving and entering England,
   and in staying and traveling in England ... to buy and sell free from all
   maletotes by the ancient and rightful customs, except, in time of war, such
   as come from an enemy country [who] shall be detained without damage to
   their persons or goods, until we or our chief justiciar know how the
   merchants of our land are treated in the enemy country; and if ours are
   safe there, the others shall be safe in our land. (qtd. in Holt 1992,

Of course, both before and after the Magna Carta, the king exercised an undefined sweep of power (the "prerogative") by which he could grant certain exclusive rights, or "franchises," to his subjects, allowing them the privilege to tax a particular trade or to have a monopoly on that trade within a certain area. But the foregoing passage shows that from early on the English were suspicious of royal control over economic opportunity. As far back as the reign of Edward III, common-law courts concerned themselves with protecting the subject's right to such economic freedom. In 1377, the court struck down a royal monopoly on the sale of wine in London that had been granted to a man named John Peachie. The court held this grant to violate the right of free trade (Holdsworth 1938, 4:344). Similarly, in John Dier's Case (2 Y.B. Henry V *26 [1415]), Chief Justice Holt ruled against a monopoly charter, holding that he would have imprisoned anyone who had claimed such a monopoly on his own authority. Thus, the king's power to control the economy was limited at common law by a right whose importance must have been obvious in an era when starvation and pestilence were common experiences. …

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