It's a tremendous victory for individual rights and for the politically powerless. And progressives are terrified of it. Over at Slate, Mark Joseph Stern warns that a Texas Supreme Court decision invalidating a requirement that commercial eyebrow threaders undergo 750 hours of training--320 of which were admittedly unrelated to threading--will plunge Texas into a Dickensian nightmare in which judges will have free reign to strike down humane and necessary laws designed to protect workers.
Stern's histrionics should not be taken seriously. The Texas Supreme Court did its job, insisting upon a rational, evidence-based explanation for restrictions on liberty that is protected by the Fourteenth Amendment as well as by the Texas Constitution. As Justice Don Willett explains in an erudite and inspiring concurrence, "The Court's view is simple, and simply stated: Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous." Such judicial engagement is required to protect what liberal Justice William O. Douglas once referred to "the most precious liberty man possesses."
Although eyebrow threading, a traditional South Asian practice, consists only in using cotton thread to remove eyebrow hair, Texas roped threaders under the same licensing requirements that are applied to conventional cosmetologists who perform a wide variety of services such as waxing, makeup, and chemical peels. The Texas Department of Licensing and Regulation issued $2,000 penalties to threaders across the state and ordered them to quit their jobs until they completed 750 hours of coursework (not a second of which is devoted to eyebrow threading) in private beauty schools costing between $7,000 and $22,000 and pass two examinations (neither of which tests eyebrow threading). In 2009, threaders Ashish Patel, Anverali Satani, Nazira Momin, Minaz Chamadia and Vijay Yogi challenged the requirements under the Due Course of Law Clause of the Texas Constitution. Like the Due Process of Law Clauses of the federal Constitution, Texas' Due Course of Law Clause prohibits deprivations of liberty that do not serve any legitimate, public-spirited end of government.
Drawing from the history of the state's Due Course of Law Clause provision, which took its current form in 1875--at a time when the Supreme Court was examining legislation under the Fourteenth Amendment's Due Process of Law Clause for a "real or substantial" relationship to public health and safety--the Texas Supreme Court determined that reviewing courts must "consider the whole record, including evidence offered by the parties" in evaluating legislation, rather than taking the government's professions of good intentions at face value. It went on to evaluate the regulation at issue, emphasizing that, by the state's own concession, "as many as 320 of the curriculum hours are not related to activities threaders actually perform." Breaking this down, the Court explained that threaders are required to undergo "the equivalent of eight 40-hour weeks of training unrelated to health and safety as applied to threading." Combined with the fact that would-be threaders have to pay for the training and at the same time lose the opportunity to make money threading eyebrows, the court concluded that the regulations imposed an unconstitutionally oppressive burden.
As the court recognized, determining whether the government regulations are constitutionally legitimate, based on record evidence and their real-world effect, can never be a mechanical process. But it is essential to limited government. Otherwise, there is nothing that would prevent the government from forcing threaders to take, say, 1,500, or 2,500 hours of training unrelated to threading, run marathons, or dig ditches before being certified. Judges would have to rubber-stamp such regulations and tell hardworking entrepreneurs to take it up with their local legislators. Indeed, that is what happens all too often in cases in which the federal "rational basis test" is applied. So deferential is this "test" in practice that, in the case that was before the Supreme Court in Obergefell v. Hodges, the same-sex marriage case, the Sixth Circuit Court of Appeals held that the government may treat people differently for any plausible reason, even pure favoritism.
Remarkably, Stern seems comfortable with that outcome, and laments that the Texas Supreme Court vindicated the threaders' rights. He advances two arguments against the decision, both of which are unconvincing; indeed, the second is so unconvincing that it is hard to believe that Stern is even convinced by it.
Stern first argues that the "liberty" protected by the Fourteenth Amendment's Due Process of Law Clause (and Texas' Due Course of Law Clause) is properly understood to encompass only a small handful of rights "relating to personal dignity and autonomy," like "marriage and intimacy." This interpretation flies in the face of constitutional text, history, and the logic of the Supreme Court's most recent decision on the subject. The Due Process of Law Clause refers only to "liberty"--it does not distinguish between "personal" liberty and "economic" liberty, nor do most people neatly divide their lives between activities that are purely "personal" and those that are purely "economic." (Which category would a dinner date fall under? Does it matter what happens later on?)
After the ratification of the Reconstruction Amendments, state courts, and, later, the Supreme Court, interpreted the Fourteenth Amendment to encompass a wide variety of actions that individuals can take without violating the rights of others. Thus, in Meyer v. Nebraska (1923), the Court explained that liberty "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience." The logic of the Court's most recent "substantive due process" decision tracks this comprehensive understanding of liberty. In Obergefell v. Hodges, which Stern invokes, Justice Kennedy begins by stating that "[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity." Few things are more central to defining and expressing our identity and, indeed, sustaining our very lives, than our work. As Professor Laurence Tribe has put it, "the determination of one's vocation" is an "essential aspect[] of personhood."
Stern next argues that even if Texas's oppressive regulatory scheme "may be a problem" for eyebrow threaders, it is a purely "legislative problem"--not one with which the courts should be concerned. He submits that the threaders could easily solve this problem through the democratic process, "by petitioning the legislature to reduce their training hours."
Stern is apparently unaware that most of the threaders involved in this case were non-citizen immigrants. Is he also unaware that American history is rife with examples of entrenched interests--that is, white males--using their political muscle to prevent newly freed blacks, women, and immigrant groups from entering into or effectively competing in the labor market? In several key cases (including Lochner v. New York (1905), which Stern disparages), the Supreme Court struck down laws designed to keep immigrants (like the threaders) from competing against native-born whites. Even today, although the Supreme Court has declared it is unconstitutional to require full citizenship and exclude legal permanent residents, some states still have licensing laws that restrict certain nongovernmental professions to citizens only. A growing body of public-choice research documents the reality of special-interest lawmaking that is designed to benefit established firms at the expense of their competitors and the general public. Stern knows well that regulations passed in the name of public health and safety are sometimes pretextual and that those burdened by them are often in no position to persuade those responsible for them to "fix" them--indeed, he recently criticized the Fifth Circuit Court of Appeals for upholding regulations of abortion providers which are purportedly designed to protect public health and safety. So apparently some vocations are more equal than others, in Stern's view.
Thanks to the Texas Supreme Court's decision in the threading case, Texans, as Justice Willett puts it, are "doubly blessed." Two years ago, the Fifth Circuit Court of Appeals, which has jurisdiction over federal courts in Texas, struck down a regulatory scheme targeting casket sales, rejecting Louisiana's "nonsensical explanations" for the scheme after finding them to be factually baseless. Recently, a federal district court (in a case that Stern does not mention but presumably disapproves of), following the Fifth Circuit, struck down a law requiring African hairbraiders like Isis Brantley to spend thousands of hours taking useless classes and thousands of dollars on useless equipment before they would be permitted to teach hairbraiding at their own schools. Thus, federal courts and state courts in Texas are committed to judicial engagement in economic liberty cases. In his concurrence, Justice Willett quotes Frederick Douglass, whose account of earning his first two dollars as a free man puts a human face on the right to earn a living that those who read it are unlikely to forget. For all those whose emotions swell at Douglass' recognition that "my hands were my own, and could earn more of the precious coin," and value the freedom that he held so precious, this decision is nothing to be afraid of--it is a cause for celebration.