Last month, the Texas Supreme Court struck a blow for liberty. Progressives are predictably upset about it. In Patel v. Texas Department of Licensing and Regulation, the court invalided state regulations requiring an individual to complete 750 hours of training from an accredited cosmetology school before they can practice hair threading, an ancient technique for removing facial or body hair using a thin string.
I don’t know much about hair threading. On the other hand, neither do most schools of cosmetology. As the majority opinion notes, of the nearly 400 state-approved beauty schools in Texas, fewer than ten teach threading techniques at all. Only one devotes more than a few hours to the practice.
Instead, much of the required curriculum is on topics that have nothing to do with hair threading. These include at least 225 hours of instruction on facial treatments, cleansing, masking, and therapy; 15 hours on aromatherapy; ten hours on nutrition; and ten hours on color psychology.
Admittedly, some of the required curriculum covers items—such as general sanitation and hygiene—that could be relevant to hair threading. Exactly how much of the coursework was irrelevant was a matter of dispute between the parties in the case. Plaintiffs claimed that 710 of the 750 required hours were irrelevant. According to the state, this was an exaggeration; it was only 320 hours that were a complete waste of time.
In other words, requiring hair threaders to get a cosmetology license makes no sense. But is it really fair to expect the law to make sense? Mark Joseph Stern doesn’t think so. Writing in Slate, Stern claims:
[The court’s] startling decision revives a dangerous, widely discredited doctrine that gives judges authority to strike down economic regulations that interfere with the free market. By resuscitating it, the Texas Supreme Court has effectively declared that laissez-faire capitalism is the only true form of American liberty.
Are irrational laws unconstitutional?
To understand what Stern is getting at, one needs a quick review of the last 150 years of constitutional law. In 1868, the United States adopted the Fourteenth Amendment to the Constitution, which states (among other things) that citizens may not be denied “life, liberty, or property without due process of law.” A similar provision was adopted as part of the Texas Constitution in the 1870s.
How to interpret the Due Process Clause has been a matter of extended controversy. One school of thought says the requirements of the Due Process Clause are purely procedural. If the law says you can get life in prison for stepping on a sidewalk crack on a Tuesday, then as long as the state gives you a fair trial before sending you to the slammer, you’re out of luck.
Alternatively, some scholars argue the Due Process Clause also imposes some kind of substantive limitation on how irrational the law can be. If the requirements of a law bear no relationship to any legitimate purpose (at least in certain areas), then they are unconstitutional even if the state follows all the typical procedural requirements. So-called “substantive due process” has come in for a lot of mockery over the years (the great constitutional theorist John Hart Ely called it “a contradiction in terms, sort of like ‘green pastel redness.’”) But few people have been willing to live without it entirely.
During the early part of the last century, the Supreme Court occasionally applied substantive due process to economic regulations. The most famous example, Lochner v. New York, involved a maximum-hours regulation for bakers that, the court found, didn’t actually improve health or safety (for more details, see here). Lochner soon became a bête noire among progressives, and Justice Oliver Wendell Holmes, who wrote a stinging dissent accusing the court of substituting its own views for those of an elected legislature, was lionized as a progressive hero.
The dignity of earning a living
Holmes, at least, really meant it. He thought courts shouldn’t be in the business of second-guessing the wisdom of legislative measures. That applied not only to economic regulations, but also to laws mandating forced sterilization and making it difficult for southern blacks to change jobs.
Today’s progressives, by contrast, mostly don’t mean it. On the same day that the Texas Supreme Court decided the hair-threading case, the U.S. Supreme Court ruled in Obergefell v. Hodges that state bans on same-sex marriage were unconstitutional. Holmes’ Lochner dissent could be adapted with very few changes to a dissent in Obergefell.
Stern recognizes this problem, but his attempt to deal with it is lacking: “The court still enforces the ‘liberty’ guaranteed by the Due Process Clause—but now it protects only those fundamental rights relating to personal dignity and autonomy, which judges are much better at describing and defending.”
Leaving aside the question of whether earning a living is not itself a matter of personal dignity and autonomy, there’s nothing in the text or history of the Due Process Clause that says it wasn’t meant to apply to economic liberty.
Nor is it clear why judges would be better at describing and defending one type of liberty than another. Figuring out the consequences and rationale of economic rules is something that state court judges do routinely; the grand philosophizing is more of a hobby. As Justice Don Willett as aptly described in a concurring opinion, occupational licensing is “often less about protecting the public than about bestowing special privileges on political favorites.” The public-choice case for additional scrutiny of such laws is strong.
While Stern invokes the bogeyman of laissez faire capitalism, the only example he can come up with for his parade of horribles is that the continuing education requirement for dental hygienists could get reduced from 15 hours a year to six hours every three years. That hardly seems like the stuff of a “Mad Max” post-apocalyptic wasteland.
Reasonable people can disagree about the extent to which courts should defer to legislatures when they pass dumb laws. But two points are beyond dispute: 1) requiring that hair threaders go through hundreds of hours of meaningless training was really dumb, and 2) if courts are going to second-guess legislatures, it shouldn’t just be for Progressive pet projects. Economic liberty matters, too.