Sandefur on the Right to Earn a Living

The Right to Earn a Living

by Timothy Sandefur

This work is available as a hardback and a pdf from the Cato Institute.

According to the principle of individual rights behind the American Revolution, people have the right to interact voluntarily to trade and produce goods and services. But "Progressive-era judges began to tear away those protections" and subject private contracts to political controls, Sandefur argues, in many cases damaging individuals' right and means to earn a living.

This reading works well for four meetings. Suggested review questions follow.

Review Questions for Sandefur I: Through Chapter 3, Page 65

1. What do taxi controls illustrate about protectionism and its impacts on workers? ("Preface," pp. xi-xiii)

2. What legal trends eroded employment liberty in America? ("Preface," pp. xiii-xviii)

3. Is there really a "right to earn a living?" ("Preface," p. xv)

4. What does the 1848 case of Willie Winfield illustrate about the historical view of economic liberty? ("The Most Precious Liberty," pp. 1-5)

5. What were the views of the judges who upheld economic liberty, and how did "progressives" distort those views? ("Myths About Economic Liberty," pp. 5-7)

6. What were the ideological roots of the legal battles over labor controls of women in the early 1900s? ("Myths About Economic Liberty," pp. 7-11)

7. What was the "Progressive" view of economic liberty? ("The Progressive Assault on Economic Liberty," pp. 11-13)

8. What is the major failing of the "Progressive" economic agenda that Sandefur describes? ("The Progressive Assault on Economic Liberty," pp. 13-16)

9. What did "monopoly" mean in 1600s England, and what was the nature of the legal fight over monopolies? ("The Common Law and Monopolies," pp. 18-23)

10. What was the founders' view of the relationship between property right and economic liberty? ("The Right to Earn a Living as a Natural Right," pp. 23-25)

11. How did the meaning of a "corporation" change from the 1700s to today? ("Changes to the Definition of 'Corporation'" and "Are 'Corporations' Still 'Monopolies'?" pp. 26-31)

12. What confusions and legal problems result from applying old definitions of corporations to modern corporations? ("The Archaic Vision," pp. 31-37)

13. How did the Civil Rights Act of 1866 and the Fourteenth Amendment expand rights of property and contract? ("The Supreme Court Erases," pp. 39-41)

14. How did the "Slaughterhouse" decision restrict those rights? ("The Supreme Court Erases," pp. 41-44)

15. What did the Progressives believe, and how did they distort the views of the advocates of economic liberty? ("Changing Definitions of 'Monopoly,'" pp. 44-49)

16. What arguments were made for the antitrust laws, and how were they enforced? ("Changing Definitions of 'Monopoly'" and "Prosecuting Business," pp. 49-55)

17. How have the laws and the courts allowed the government to maintain anticompetitive, enforced monopolies? ("Government's Freedom to Create Monopolies" and "Antitrust Immunity," pp. 56-63)

18. What caused the failure of the "Whig anti-monopoly tradition?" ("The Strange Afterlife of Freedom of Trade," pp. 64-65)

Review Questions for Sandefur II: Chapters 4-6

1. What are the political motives and economic consequences of "debt-relief laws?" ("The Contracts Clause," pp. 67-69)

2. How did Justice John Marshall recognize contract rights in the Fletcher and Dartmouth College decisions? ("Public Contracts," pp. 69-71)

3. What views of corporations led to conflict over the Charles River Bridge case? ("Public Contracts," pp. 71-73)

4. How did restrictions on government-issued monopolies evolve into political interference in private contracts? ("Reserved Power to Regulate," "The Modern Contracts Clause," pp. 73-81)

5. What were the key clashes between "Lockean classical liberals" and their detractors in antebellum America? ("Sovereignty and It's Limits," pp. 84-88)

6. In Sandefur's view, how did the Slaughterhouse Cases "mangle" the Fourteenth Amendment? ("Sovereignty and It's Limits," pp. 88-89)

7. What is "economic substantive due process of law?" ("The Era of Substantive Due Process," pp. 83-84; "What Is 'Substantive Due Process,'" pp. 90-100)

8. What is the "general welfare" or "public good?" ("What Is 'Substantive Due Process,'" pp. 93, 96)

9. How did decisions in the Granger Cases impact property rights and the freedom of contract? ("The Granger Cases," pp. 100-102)

10. What were the ideological views leading to the 1895 Bakeshop Act in New York and manifest in the resulting Lochner opinions? ("Lochner," pp. 102-107)

11. Does "unequal bargaining power" imply the government may interfere with contacts at will? ("The Attack on Lochner," pp. 107-110)

12. What were the major issues of the infamous Dred Scott decision? ("Robert Bork," pp. 110-113)

13. What have been the views of modern judges and scholars on substantive due process? ("Robert Bork," "Souter, Tribe and Sunstein," and "Paul Kens," pp. 110-121)

14. What is the background and nature of the "rational basis test?" ("The Rational Basis Test," pp. 123-127)

15. Is the "rational basis test" rational? ("The Problems with Rational Basis," "Litigating Under the Rational Basis Test," pp. 127-135)

16. What is the meaning and significance of "footnote four" from United States v. Carolene Products? ("Higher Scrutiny," pp. 135-140)

Review Questions for Sandefur III: Chapters 7-9

1. What is protectionism, and what are its most common forms? ("Protectionism and the Law," pp. 141-142)

2. What was the central disagreement between Justices Sutherland and Brandeis regarding states as laboratories of law? ("Protectionism and the Law," pp. 142-143)

3. Whose interests do business licenses serve, and who is harmed? ("Protectionism and the Law," "Licensing," "Pest Control," pp. 143-159)

4. How do some businesses use zoning laws to exclude competitors? ("Zoning," pp. 159-163)

5. How and why does the federal government artificially raise food prices? ("Agricultural Adjustment," pp. 164-170)

6. What is proper government policy regarding business franchises? ("Franchise Acts," pp. 170-174)

7. What was the purpose of the Commerce Clause? ("The Dormant Commerce Clause," "Interfering with State Autonomy," pp. 175-182)

8. When does the "dormant commerce clause" protect freedom? ("The Dormant Commerce Clause Protects Freedom," "The Dormant Commerce Clause and Local Communities," pp. 182-189)

9. What ideas led to the restriction of commercial speech, and why does Sandefur think such speech is rightly protected? ("Commercial Speech," pp. 191-196)

10. What arguments did California judges use to restrict Nike's speech, and how has that case chilled commercial speech? ("Silencing Businesses," pp. 196-201)

11. How do commercial speech restrictions target individuals as well as corporations? ("Commercial Speech as Individual Self-Expression," "Logos and Branding," pp. 201-207)

12. What are the legal and political problems with politicians forcing businesses (or individuals) to finance speech with which they disagree? ("Compelled Speech," pp. 207-212)

Review Questions for Sandefur IV: Chapters 10-13

1. What is a contract, and what is "liberty of contract?" ("The Manipulation of Contracts," pp. 213-215)

2. When (if ever) should courts alter or negate a contract because of an "imbalance of bargaining power?" ("Imbalance of Bargaining Power," "Public Policy," pp. 215-224)

3. When is a contract "unconscionable," and what should courts do about it? ("Unconscionability," pp. 224-230)

4. What are the costs of legislative and judicial interference with at-will employment contracts? ("At-Will Employment," pp. 230-238)

5. Should governments or private parties sue on grounds of "public nuisance?" ("Public Nuisance," pp. 239-245)

6. How does California's "Unfair Competition Law" illustrate the abuse of torts? ("California's Vague Business Torts," pp. 245-249)

7. How are anti-discrimination laws prone to abuse? ("Civil Rights Laws," pp. 249-254)

8. What is "regulatory taking," and how does it differ from police action? ("Regulatory Takings," "Are There 'Regulatory' Takings," "Modern Attempts," pp. 255-264)

9. What are the arguments and tactics used for not compensating property owners in cases of regulatory takings? ("Why the Controversy," "Tactics for Denying Compensation," pp. 264-274)

10. How do local governments force property owners to serve political ends? ("Exactions," "The Future of Regulatory Takings Law," pp. 274-278)

11. Why did we lose our economic liberties, and can we win them back? ("The Future of Economic Liberty," pp. 279-293)

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