The (Limited) Constitutional Right to Compete in an Occupation

Abstract

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of the First and Fourteenth Amendments of the Constitution, and courts are wrong to flatly defer to state regulation of the occupations. But states can have legitimate interests in restricting entry to a profession and setting rules for its practice, and so we should not take an uncompromising view of occupational liberty. Rather courts should (and most do) chart a middle path in considering due process and free speech challenges to licensing laws. But while this middle path may be right as a constitutional matter, it is too weak to effect real reform in the area of excessive licensing. Solutions to the policy problem of too much licensing must be found elsewhere.