A recent SCOTUSblog analysis examines how the "born free and equal" clauses found in many state constitutions support a fundamental right to pursue one's chosen profession. The article argues that this economic liberty is as vital to a free society as freedom of expression and religion, and that the plain text of clauses like Massachusetts's 1780 declaration—guaranteeing rights to life, liberty, property, and the pursuit of safety and happiness—necessarily includes the freedom to enter an occupation for which one is qualified.
The analysis grounds this right in Founding-era legal traditions. It points to Pennsylvania's 1776 Declaration of Rights, which stated that government is instituted for the "common benefit" of the people, not for the "particular emolument or advantage" of any single person or group. Similar provisions appeared in Massachusetts, New Hampshire, Virginia, and Vermont, while Maryland and North Carolina explicitly prohibited monopolies. The article contends that these provisions reflect a deep-rooted American tradition against special-interest laws that restrict occupational choice.
The article then criticizes the Supreme Court's 1955 decision in Williamson v. Lee Optical Co., which upheld an Oklahoma law that effectively put opticians out of business by requiring written prescriptions for lens duplication. The Court applied a deferential rational-basis test, reasoning that the law need only be a rational way to correct an evil. The article argues this was a mistake, calling the Oklahoma law a special-interest regulation that boosted eye doctors' revenue at the expense of opticians. It notes that Rhode Island achieved the same public-health goal through a less restrictive means—requiring drivers to certify they had seen an eye doctor when renewing licenses.
Ultimately, the article suggests that the "born free and equal" clauses and related anti-monopoly principles offer a stronger originalist foundation for protecting occupational liberty than the Court's current deference to economic regulation. By ignoring this history, the article argues, the Court has allowed laws that serve private advantage rather than the common benefit.