by Jacob G. Hornberger
The Supreme Court has upheld an Arizona law that imposes harsh penalties on employers who knowingly hire illegal aliens. The penalty of violating the law entails the suspension of a firm’s business license. The law requires state companies to verify that employees are legal by using a federal database.
Oh, for the days of substantive due process! That was the period of Supreme Court history when the Court protected people’s fundamental rights from infringements by both the federal government and the state governments. Federal infringements were declared unconstitutional by virtue of the due process clause of the Fifth Amendment and state infringements by the due process clause of the Fourteenth Amendment.
Or, perhaps I should backtrack a bit. It’s not that the Supreme Court won’t protect some fundamental rights from both federal and state assault. They certainly do. It’s just that ever since the Franklin Roosevelt statist revolution, the Court has refused to protect economic liberty from both state and federal infringements.
For example, if Arizona had enacted a law punishing employers who gave speeches and handed out pamphlets opposing Arizona’s immigration law, the Supreme Court would have easily declared the law to be an unconstitutional infringement on the fundamental right of freedom of speech. The Court would have relied on the Fourteenth Amendment’s due process clause to protect people’s right to free speech.
The same goes for religious liberty, another well-recognized fundamental right. If Arizona required people to attend church on Sunday, the Court would hold that the law is an unconstitutional infringement on freedom of religion.
The problem arises with respect to economic liberty, which Supreme Court justices, like good, little statists everywhere, look upon not as a fundamental right but rather as a privilege bestowed on people by government.
Look at that Arizona immigration law. How does it punish employers who knowingly hire illegal aliens? By revoking their licenses to do business in the state.
Did you catch that? A license to do business! What’s a license? It’s a government-granted permission — a permission that must be bought and paid for and issued before someone can go into business.
In other words, in order to sustain and improve their lives through labor and economic activity, people must ask for permission from the state. That’s as antithetical to the notion of fundamental rights as one can get.
Did I mention that businesses in Cuba and China must also secure licenses from the state as a prerequisite to engaging in economic activity? Statists everywhere think alike.
Do you see how different statists are from libertarians? Libertarians hold that a person has the fundamental, God-given right to not only speak his mind and decide whether to go to church but also the right to sustain his life through labor by engaging in economic activity, including the buying and selling of products and services, and deciding what to do with his own money.
Given that economic liberty is a fundamental, God-given right, people should no more have to secure a license from the government to exercise that right than they should to give a speech or operate a church.
After all, it’s your life, isn’t it? The government didn’t create you, God did or, if you prefer, nature did. Whatever talents and abilities a person has have come to him from nature and nature’s God, not from government. You have the inalienable right to use those talents and abilities by offering goods and services to other people, who have the right to choose to purchase them or not.
Moreover, the fruits of your earnings belong to you, not to the government, and you have the fundamental, God-given right to do whatever you want with your own money. If you choose to use your money to hire Mexicans, Guatemalans, Englishmen, Frenchmen, or Americans, that is your right, just as it is their right to accept or refuse your offer of employment.
That’s what economic liberty is all about. Unfortunately, we were all born and raised in an age of statism, one in which statists are everywhere, including on the Supreme Court. As such, we have to put up with such statist nonsense as occupational licensure and sanctions for associating with employees that statists don’t like or approve of.
As statism generally continues heading people into endless economic woes, we can only hope that there will be a rediscovery and renewed appreciation for the principles of fundamental rights and economic liberty. Wouldn’t it be great to see the following amendment added to the Constitution: “No law shall be passed by either the federal government or the states respecting the regulation of commerce or abridging the free exercise thereof”?
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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