Economic liberty, as defined on The Bob Zadek Show, is the right to earn an honest living free from unnecessary government intervention. Guests from the Institute for Justice, Pacific Legal Foundation, and the libertarian legal movement describe it as comprising two principal rights — free labor, meaning the right to contract with another person for work at an agreed-upon salary, and freedom of enterprise, meaning the right to establish a non-harmful business without extensive government interference.
Definition and scope
Dick Carpenter of the Institute for Justice defines economic liberty as the right to earn an honest living free from unnecessary government intervention, and frames occupational licensing as its central modern battleground: an occupational license is a government permission slip to work, and licenses now affect about 25% of the workforce in the United States. He contrasts licensing with other liberties — freedom to come and go, freedom of speech, freedom of association — which Americans typically exercise without seeking government permission, whereas licensing requires satisfying a licensing board or government agency rather than a consumer or employer. Bob Zadek presses the point that the phrase can sound empty to listeners who believe they already live in a free-market system, which is why the distinction matters New data shows that occupational licensing does nothing to increase quality (2022) The Presumption of Liberty & Occupational Licensing (2022).
Zadek describes himself as offended by any statute that denies somebody the right to sell their services or their goods to benefit their family, calling such statutes un-American, and invoking the image of the United States as the shining city on the hill for 234 years. He argues that immigrants such as the founders of Google came to practice their craft and improve themselves, and that losing this ethos would reduce the country to just another European country on the wrong side of the Atlantic Ocean The Great Founding Fathers (2010).
The constitutional status of economic rights
Damon Root places economic rights among the unenumerated rights — not specifically mentioned in the Constitution or the Bill of Rights, but widely believed to exist — including freedom of contract and free labor, the right to sell whatever you want at a fair price so long as you commit no crime or fraud in doing so. Zadek introduces the topic by contrasting these with the civic rights Americans recite from memory, such as free speech, assembly, religion, freedom from unreasonable searches and seizures, and protection against cruel and inhuman treatment. Root traces the source of economic rights to the 14th Amendment, ratified in 1868, and to the free labor philosophy of the abolitionists and radical Republicans: the idea that each individual owns himself and the fruits of his labor, so that basic occupations, such as driving a taxi cab, should not require burdensome licensing processes. He argues the courts should protect these rights at the same level as freedom of speech and free association, and notes that during the progressive and New Deal periods courts regularly struck down economic regulations as violations of economic rights Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root dates the change to the New Deal constitutional revolution of 1937 and 1938 and a series of Supreme Court cases in the early 1940s, after which the Court, in his account, declined to protect economic liberty, deferred to regulators, lawmakers, government officials, and bureaucrats, and acted as a rubber stamp in favor of the regulatory state.
Clint Bolick offers a parallel history. He says the rights trace back to the time before the United States was a nation and were brought from England; because they were so widely accepted and taken for granted, no one thought it necessary to enumerate them explicitly in the Constitution. After the Civil War, when blacks were emancipated and began offering their labor at competitive wages and going into business for themselves, southern states enacted Black Codes aimed at suppressing black labor by suppressing freedom of contract to negotiate wages, imposing occupational licensing laws and restricting private property rights. Bolick states that these laws were outlawed by the Civil Rights Act of 1866 and then incorporated into the 14th Amendment through its Privileges or Immunities Clause — a clause he says was erased from the Constitution within a short time in the Slaughter-House Cases in Louisiana, after which the courts relegated economic liberty to a status he would call third- or fourth-class rather than merely second-class. He adds that these laws particularly harm people with little education and little capital, preventing them from creating enterprises or working in occupations where they could earn an honest living Local Leviathan: Clint Bolick on Grassroots Tyranny (2018).
The founding-era case for free trade and free labor
Anthony Sanders of the Institute for Justice argues that the original purpose of the Constitution, drafted in 1787, was not so much the Bill of Rights — freedom of speech, religion, and other protections — but the trade wars between the states and the need to call enough is enough on people being able to sell their products across state lines. The result, he says, was a national free trade zone in which people could earn an honest living by selling across different markets, and he notes that 200 years later the same fight continues because people still do not want you to be able to earn an honest living. He describes the Institute for Justice’s strategy by analogy to Kelo on eminent domain: the organization hopes to build public awareness of economic freedom so that the public will be similarly outraged when city planners or bureaucrats license people or take away rights to use their land, as in Lake Elmo The Great Founding Fathers (2010).
Timothy Sandefur grounds the idea in the phrase “the fruits of one’s labors”, which he says preceded the founding of the country and exists in writing during the Enlightenment era. In the constitutional draft he discusses with Zadek, he borrowed from the Missouri Constitution a protection reading that no government shall prohibit the free exercise of religion or abridge freedom of speech or conscience, or infringe on the right of the fruits of one’s labors or the right to live a peaceful life of one’s choosing. Sandefur explains that the clause is meant to protect economic liberty and private property rights — the right to earn a living honestly in exchange for money from someone willing to buy or sell, and to keep the benefits of that transaction — while the guarantee of a peaceful life of one’s choosing protects privacy and broader natural rights, because a bill of rights cannot specify every individual right without becoming an infinitely long list Timothy Sandefur on The Libertarian Constitution (2021).
Litigating economic liberty
Glenn Roper describes Pacific Legal Foundation as a nationwide nonprofit public interest law firm whose mission is to protect individuals and entities against government overreach, promoting property rights, economic liberty, the separation of powers, and equal protection, without charging clients, and entirely donor-funded as a 501(c)(3). He reports that with the most recent Supreme Court term the organization had reached 12 victories in the United States Supreme Court. Zadek characterizes the foundation’s plaintiffs as the smallest of proprietorships and independent business people or property owners — people trying to make an honest living who, without representation, would have no voice — and emphasizes the multiplier effect by which a single precedent helps tens of thousands of similarly situated small business people and property owners The Mini-Administrative State (2020).
Mike Greenberg is introduced as a litigation attorney with the Institute for Justice handling cases promoting personal property rights, economic liberty, and free speech, and as particularly active in civil asset forfeiture abuse. Carpenter describes the Institute for Justice as a non-profit public interest law firm representing individuals pro bono, litigating in four areas — economic liberty, property rights, free speech, and educational choice — and seeking to expand individual liberty through the courts and the court of public opinion, with a research team producing original social science research to show that the issues clients face are not idiosyncratic but emblematic of a much larger problem New data shows that occupational licensing does nothing to increase quality (2022) Civil Asset Forfeiture Revisited (2023).
Across episodes
The same question — why economic rights receive less judicial protection than civic rights — is argued across several episodes with different emphases rather than a developing arc: Bolick and Root both attribute the subordinate status to the post-New Deal settlement and, in Bolick’s account, the neutering of the Privileges or Immunities Clause, while Sandefur and Sanders look back to founding-era free trade and the fruits of one’s labors, and Roper and Carpenter describe the litigation and research strategies built on that history. The episodes touching the topic include those featuring Sanders, Root, Bolick, Roper, Sandefur, Carpenter, and Greenberg; the excerpts show no development between the earlier and later treatments beyond the recurrence of the same claims.
What the sources do not cover
The excerpts do not state the outcome of any case discussed, the holdings of Lochner v. New York or the Slaughter-House Cases beyond the accounts given by the guests, or the text of the statutes and constitutional provisions named. They also do not identify the state in which Lake Elmo is located, the date of the Civil Rights Act of 1866 beyond Bolick’s reference to it, or the amendment on which the civil asset forfeiture discussion turns beyond the episode’s framing. No source provides empirical findings from the research Carpenter alludes to, nor the specific licensing requirements at issue in any case.