This article concludes a seven-part introductory series examining the relevance of the born free and equal clauses to constitutional law and the Supreme Court. Those clauses appeared in the Declaration of Independence and in six of 12 state constitutions when the federal Bill of Rights was ratified in 1791. By 1868, when the 14th Amendment was adopted, 24 of 37 states included similar provisions, and today 37 of 50 state constitutions contain such language. The Massachusetts Constitution of 1780, for instance, declared that people are born free and equal and possess natural, essential, and unalienable rights, including acquiring and protecting property and seeking and obtaining safety and happiness.
Born free and equal and economic liberty
In earlier installments, the series argued that the born free and equal concept is deeply rooted in American history and tradition, and it applied those clauses to debates involving abortion prohibitions, same-sex marriage, and eugenics laws. The argument held that limitations on abortion, the right to keep a firearm at home, and access to civil marriage reflect longstanding American tradition and history.
This final piece addresses a less discussed but fundamental liberty: the right to pursue one’s chosen profession or livelihood. The case is made that this economic freedom is as central to a free society as freedoms of expression and religion.
Textually, the born free and equal provisions imply freedom to select one’s occupation. Reading Massachusetts’s 1780 guarantee, it is difficult to square the rights to enjoy liberty, acquire and protect property, and seek safety and happiness with a regime that blocks qualified people from entering their chosen line of work.
Originalist reasoning reinforces that view. As argued earlier in the series, privileges or immunities, or substantive due process rights, must be grounded in history and tradition, though they may yield to a just law enacted for the benefit of the whole people.
In the 1823 decision Corfield v. Coryell, which has been described as articulating the 14th Amendment’s analogue to the born free and equal protections, Justice Bushrod Washington identified among the rights deeply rooted in American tradition the right of a citizen to move to or reside in another state for trade, agriculture, professional pursuits, or otherwise.
Founding-era texts reflected the same idea. Pennsylvania’s 1776 Declaration of Rights stated that government is instituted for the common benefit, protection, and security of the community, and not for the particular advantage of any single person or group. Nearly identical clauses appeared in Massachusetts, New Hampshire, Virginia, and Vermont. Maryland and North Carolina went further by banning all monopolies in their state charters. Of the 12 states that adopted new constitutions by 1791, seven included provisions forbidding special laws that favored monopolists in entire professions.
That historical backdrop frames the 1955 Supreme Court case Williamson v. Lee Optical Co. Oklahoma had made it illegal for anyone other than a licensed optometrist or ophthalmologist to duplicate or replace broken eyeglasses without a written prescription. The law effectively sidelined opticians, such as Lee Optical, who could provide replacement lenses by reading the prescription from an existing pair, often at lower cost to consumers.
Oklahoma defended the measure as a way to encourage residents to keep prescriptions current. Other states have taken different approaches, such as requiring drivers to attest under penalty of perjury during license renewal that they have seen an eye doctor and updated their prescription within a set period, which can help avoid repeated, unnecessary expenses when glasses break.
The Supreme Court unanimously upheld the Oklahoma statute, stating that a law need not be logically consistent in every respect with its aims. It is sufficient, the Court said, if there is an evil to be corrected and the legislature might think the chosen measure is a rational way to address it.
Critics argue that this rationale conflicts with the founding-era common benefit and anti-monopoly clauses, as well as the prevailing anti-monopoly sentiment at the time of the 14th Amendment. By that historical measure, the Oklahoma law looked like a special-interest regulation that boosted eye doctors’ revenues while shutting opticians out, even though the public objective could have been pursued by less restrictive means.
Partly as a consequence of Williamson, occupational licensing now affects more than one in five workers in the United States. Over 100 trades are licensed in various jurisdictions, including barbers, cosmetologists, tanning-salon operators, massage therapists, shoe-shine workers, dry cleaners, and florists. Many of these roles involve minimal public risk. In other fields, such as plumbing and electrical work, licensing boards are often controlled by industry participants, which can raise costs and limit availability.
Even where licensing is appropriate for safety-critical professions, such as doctors, pilots, lawyers, and in many cases plumbers and engineers, the standards should not be so restrictive that too few licensees are authorized to meet public demand at reasonable prices.
Several democracies, including Germany, Japan, Brazil, South Africa, and Israel, protect occupational freedom explicitly in their bills of rights and enforce that protection robustly in their courts.
The rational basis test for most unenumerated rights, including economic regulations, is not challenged here in general. The contention is that occupational licensing should be treated differently in light of the widespread common benefit clauses in 1791, the recognition in Corfield of a right to pursue a chosen profession, and the implications of the born free and equal guarantees.
The right to pursue a livelihood is cast as a fundamental economic liberty on par with core civil rights like expression, religious exercise, and freedom from unreasonable searches. Drawing a bright line between personal and economic liberty, the argument goes, lacks grounding in the nation’s history and tradition and does not reflect contemporary practice. Addressing that disconnect would require revisiting long-standing precedent, and the view advanced here is that the time to do so has arrived.
Debates over how courts identify and enforce unenumerated rights echo broader disputes about evolving standards of liberty and equality, similar to those explored in Eighth Amendment and evolving standards of decency in flux. In that context, questions about history, tradition, and contemporary practice likewise shape how judges evaluate governmental power and individual rights.