Analysis: Flower Arrangement Freedom Should Bloom? Attorney

LI advocates open and multiple third party voluntary certification that is accountable–not current and hence unaccountable coerced and politicized regulation of bizarre requirements, crony exceptions, and fees that are diverted to enrich politicians. A good starting point might be flower-arrangment licenses and recognizing that rights include the right to make a living. One analyst’s view…

Economic rights are largely considered passe these days. The concept of a natural right to contract (or trade) is not typically invoked with any genuine authority. The end of the “Lochner Era” in American jurisprudence, which lasted from the turn of the last century to the 1930′s, has seen unchecked expansion of government intrusion into Americans’ personal economic dealings.

The Lochner Era actually began before the eponymous decision in Lochner v. New York (1905). In fact it began right here in New Orleans with a challenge to an 1894 state law that forbid Louisianans from contracting with out of state insurance companies. E. Allgeyer and Co. insured an international shipment of cotton with a New York marine insurer in violation of the 1894 law. The State filed suit against Allgeyer, who challenged the constitutionality of the law on due process grounds.

Allgeyer’s case eventually reached the U.S. Supreme Court. In Allgeyer v. Louisiana (1897), the court held in Allgeyer’s favor and held the law unconstitutional on due process grounds.

Writing for the majority, Justice Peckham held that “the ‘liberty’ mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which maybe proper, necessary, andessential to his carrying out to a successful conclusion the purposes above mentioned.”

Alas, Allgeyer is no longer the law of the land. The perceived necessities of dealing with the Great Depression, together with President Roosevelt’s disturbing court-packing scheme, spelled the end of the concept of due process protection of economic liberty.

Here in Louisiana this lack of protection for economic rights is readily apparent. According to a recently-released study by the libertarian Institute for Justice, Louisiana leads the nation in professional licensing requirements. Louisiana currently licenses a whopping 71 professions, more than any other state. Louisiana even licenses florists and interior designers. Until recently, “shampooer” was a licensed profession – you literally needed a license just to wash somebody’s hair.

The drive for this licensing generally comes from the professions themselves, not consumers. It’s simple protectionism; licensing makes it more difficult to practice a profession and thus limits numbers in a given profession, pushing salaries higher. In the same vein, I’m sure domestic insurers had lobbied for the law banning out of state insurance contracts at issue in Allgeyer. After all, it cut out most of the competition.

All this runaway licensing doesn’t only earn Louisiana bad press, it restricts our rights in very real, meaningful ways. Allgeyer recognized that the citizen has the liberty “to earn his livelihood by any lawful calling, to pursue any livelihood or avocation.” Today, you can’t even arrange and sell flowers without permission from the state.

The Lochner Era may be over, and Allgeyer may be dead letter, but that doesn’t mean that we can’t recognize just how ridiculous and oppressive state and local licensing requirements have become. And maybe, just maybe, our concept of what constitutes “liberty” needs to be expanded to encompass certain basic economic rights. We can start with the right to arrange flowers for profit.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for on Mondays. He has previously written for the Reason Public Policy Foundation.


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