In 1985’s classic film, The Return of the Living Dead, a rainstorm spreads a zombie-creating chemical throughout a city. In 2022, the Supreme Court’s relentless focus on originalism has also awakened long-dead legal doctrines.
One such resurrection appears in the concurrence from Golden Glow Tanning Salon v. City of Columbus, which advocates examination of a constitutional “right to earn a living” in light of how such economic matters were understood in the late 1700s.
That remarkable suggestion would overrule a near-century of case law about the scope of the “liberty” protected by the Constitution. And it would do so in the dark, with no input from modern economics. That academic field simply did not exist in 1791 and was not fully developed until well into the Twentieth Century. The concurrence’s invitation should be declined.
Golden Glow is straightforward under current law. The majority opinion rejected a constitutional challenge by a tanning salon to a city’s COVID-19 restrictions. The panel applied “rational basis” review—the standard since the 1930s for Constitutional challenges to economic regulation—and held that the city had a plausible reason for the public-health law. Judge Edith Jones wrote the opinion, joined by Judges James Ho and Cory Wilson.
Judge Ho went a step further in his concurrence. His opinion acknowledged the current state of rational-basis precedent. But it also noted that recent Supreme Court opinions, such as Dobbs v. Jackson Health, focus on the historical understanding of constitutional text when written. Applying such a focus, argued the concurrence, the constitutional protection of “liberty” may be informed by thinking from the 1700s about the “right to earn a living” and whether such a right could be squared with a regulation.
Of course, that phrasing is precisely how the Supreme Court described the issue in Lochner v. New York, the long-discredited 1905 opinion that struck down a maximum-hour restriction in the baking industry:
“Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual. …”
The appeal to a “right to earn a living” is thus a direct appeal to the bygone age of Lochner. The Supreme Court abandoned Lochner in the 1930s when laissez-faire ideas proved useless in the face of the Great Depression—a systemic failure of capitalism itself—and the Court faced significant backlash against its repeated invalidation of New Deal economic programs.
Of course, reasonable minds can differ about the merits of any government decision to intervene in the free market. And they can surely differ about the merits of the massive administrative state caused by the Supreme Court’s retreat from Lochner.
But the terms of such debates are framed by insights from the field of economics. (The famed English economist Joan Robinson notably described her work as creating a “toolbox” for policymakers.) And that field simply did not exist in 1791 when the Constitution was ratified.
The concept of supply and demand curves, for example—the basic concept behind virtually all economic analysis—did not meaningfully exist until 1890 when Alfred Marshall published his landmark Principles of Economics.
From the left, the argument for strong fiscal policy was not fully developed until John Maynard Keynes published The General Theory of Employment, Interest and Money in 1936. From the right, Milton Friedman’s epic Monetary History of the United States was published in 1963. The Nobel Prize in economics did not begin until 1969.
Put simply, economics is a new field. Vigorous debate about economic policy is a critical part of government. The Supreme Court’s abandonment of Lochner in the 1930s made clear that most such debates are not for the courts. We should be slow to now re-engage them in the name of “originalism”—much less, without the benefit of the entire academic field of modern economics.
The Fifth Circuit’s opinion is Golden Glow Tanning Salon v. City of Columbus, No. 21-60898 (5th Cir. Nov. 8, 2022).
David Coale is a partner who specializes in appellate law at Lynn Pinker Hurst & Schwegmann. He writes 600Camp, a blog about trends at the U.S. Court of Appeals for the Fifth Circuit.