Any blow struck for economic liberty is worth celebrating, even if the person wielding the hammer is not, shall we say, a fan of Rothbardian libertarianism. But there is encouraging news from Tim Sandefur of the Pacific Legal Foundation, which pressured the Missouri legislature to repeal its licensing laws regarding moving companies:
Under the old law, a person applying for permission to operate a moving company was required to submit to a licensing scheme under which existing moving companies were given the privilege of basically vetoing the application. We challenged that law on behalf of St. Louis entrepreneur Michael Munie, and argued the case in federal district court in April. But in the meantime, state lawmakers passed legislation repealing the law, and this afternoon, Governor Nixon signed that bill, thus opening the road for economic opportunity in the Show Me State.
Baby steps, to be sure — Missouri and most other states have licensing laws for dozens of occupations, some imposing absurd educational requirements (in Texas, for example, “shampoo specialists” at hair salons must have 150 hours of training before they can even test for their license) and exorbitant costs for both training and the licensing process itself. None of these laws actually do anything to ensure quality service for consumers; they exist solely to protect incumbents from competition. These laws can’t disappear quickly enough, and kudos to the PLF and other organizations, such as the Institute for Justice, for continuing to challenge them.
Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.
Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.
I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.
In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.
Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.