There was no constitutional foundation for doing so, and the result has been to deprive people like Dipendra and Kishor of the legal protections to which they’re entitled-as well as blocking the public from obtaining goods and services that would improve their lives. It was only in the 1930s that the Supreme Court decided to lay aside that essential part of constitutional liberty, in a series of cases that invented the “fundamental”/“non-fundamental” distinction in order to expand government power over the economy. And it was one of the primary individual rights that the authors of the Fourteenth Amendment had in mind when they crafted that important constitutional provision. If a right must be “deeply rooted in this nation’s history and tradition” in order to qualify as “fundamental,” as the Supreme Court recently said, then the right to economic freedom certainly qualifies. Constitution) and the right to earn a living-what the founding fathers called “the pursuit of happiness,” and what we today call the American Dream.Īs we argue in our friend-of-the-court brief, this right has deep historical roots: English courts were protecting it under the “law of the land” provision of Magna Carta almost two centuries before the United States declared independence. This includes private property (the right most frequently mentioned in the U.S. Worse still, courts classify some of our most important constitutional freedoms as “non-fundamental,” thereby rendering these rights largely meaningless. These lesser rights are only given “rational basis scrutiny,” a piece of legal jargon that means legislators and bureaucrats may disregard these “non-fundamental” rights in all but the rarest instances. Supreme Court has distinguished between constitutional rights it calls “fundamental”-and which the justices carefully protect against government overreach-and rights it considers less important. Unfortunately, for almost a century now, the U.S. It wasn’t because they’re unqualified or incompetent, but rather because government bureaucrats think there are already enough medical clinics.ĭipendra and Kishor sued, arguing that this restriction takes away their right to earn a living for no legitimate reason. Thus, when two Nepali immigrants, Dipendra Tiwari and Kishor Sapkota, wanted to start a business helping the Nepali-speaking community in Kentucky-providing a unique service to a group of people who might not otherwise get the nursing and medical care they need-they were told no. Because it’s impossible for government to predict what the public needs, these CON laws block innovative new medical care options from reaching the market, which means they deprive people of services and block physicians from helping patients. The case involves the Bluegrass State’s “Certificate of Need” law, or “CON” law-which prohibits medical clinics from operating unless they first prove to the government that there’s a “public need” for such a clinic. Now, in a lawsuit coming out of Kentucky, the Goldwater Institute is urging the Supreme Court to fix this problem and extend full constitutional protection to the right of economic freedom-a right “deeply rooted in this nation’s history and tradition.” Unfortunately, courts have relegated it to a kind of second-class status over the years. To preserve this right, happy warriors must fight to enable the enrichment of opportunity and must become champions of the modern-day eudaimonia, the ability to “earn one’s success.” To this end, happiness is a fight for people, not against things.Economic freedom is a constitutional right built into the fabric of the ideals upon which our nation was founded. In other words, humanity achieves its peak actualization by living a good life full of positive actions, not by acquiring things to demonstrate one lived “successfully.”Īs America matures, misguided policy and hostile culture risk foreclosing this pursuit to future generations. Happiness is a state of being based in morality, virtue, and utility, not an acquisition. They referred to “eudaimonia,” the Greek term for “happiness,” connoted as performing the right actions that result in the well-being of an individual.

It is indeed traceable to the 5th century B.C., and the Greek philosophers. This pursuit is one of the unalienable and natural rights that Jefferson found so irresistible, but it dates back well before his or Locke’s time. Locke noted that this pursuit is not merely an imaginary quest or a satisfaction of personal desires, but an ability to achieve the greatest good free from any predetermined will or forced action. Thomas Jefferson may have been borrowing from the 17th century English philosopher John Locke when he coined the phrase, “life, liberty, and the pursuit of happiness.” After all, nearly 100 years before Jefferson penned the Declaration of Independence, Locke wrote that the foundation of liberty is built on the need to pursue happiness.

Right to pursuit of happiness