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Thread: Freedom of Contract and Occupational Licensing 1890-1910

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    Default Freedom of Contract and Occupational Licensing 1890-1910

    1890 to 1910, occupational licensing first achieved a firm foothold in the statute-books of most American states. Laws to license doctors, plumbers, barbers, funeral directors, nurses, electricians, horseshoers, dentists, and the practitioners of many other occupations were debated, propounded and very often passed. Many of these laws then gave rise to constitutional test cases. Unlike the more spectacular labor law cases, the licensing cases called down no pronouncements of doom and enlisted neither proponents nor opponents in high and academic places to argue validity and pro- priety on the basis of first principles. This was a quieter, blander area of constitutional law. From the standpoint of logic and of life, however, the cases involved first principles no less than those which arose under wage and hour laws. If a workman had a constitutional and God-given right to contract to work eleven hours a day in a bakeshop, or to be paid in kind instead of cash, 2 he should have had a similar right to contract with an unlicensed barber or to buy a laxative from a druggist without a certificate on his wall. Similarly, the right of the barber to sell his services without "paternal interference" from the 1890 to 1910, occupational licensing first achieved a firm foothold in the statute-books of most American states. Laws to license doctors, plumbers, barbers, funeral directors, nurses, electricians, horseshoers, dentists, and the practitioners of many other occupations were debated, propounded and very often passed. Many of these laws then gave rise to constitutional test cases. Unlike the more spectacular labor law cases, the licensing cases called down no pronouncements of doom and enlisted neither proponents nor opponents in high and academic places to argue validity and pro- priety on the basis of first principles. This was a quieter, blander area of constitutional law. From the standpoint of logic and of life, however, the cases involved first principles no less than those which arose under wage and hour laws. If a workman had a constitutional and God-given right to contract to work eleven hours a day in a bakeshop, or to be paid in kind instead of cash, 2 he should have had a similar right to contract with an unlicensed barber or to buy a laxative from a druggist without a certificate on his wall. Similarly, the right of the barber to sell his services without "paternal interference" from the state might seem as cogent as the right of a bakery owner to buy labor unimpeded. We shall have to see, then, how the courts treated the constitutional problems raised by licensing laws. We also shall examine why these licensing laws were passed, who suggested them, and for whose benefit they were enacted. A close examination of this area of legal history may provide us with a kind of control group of decisions to test our explanations of the be- havior of the judges in matters of high constitutional controversy.

    http://scholarship.law.berkeley.edu/...ornialawreview


    California Law Review

    Volume 53

    |

    Issue 1

    Article 21

    March 1965

    Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study

    Lawrence M. Friedman

    49 pages

    'We endorse the idea of voluntarism; self-responsibility: Family, friends, and churches to solve problems, rather than saying that some monolithic government is going to make you take care of yourself and be a better person. It's a preposterous notion: It never worked, it never will. The government can't make you a better person; it can't make you follow good habits.' - Ron Paul 1988

    Awareness is the Root of Liberation Revolution is Action upon Revelation

    'Resistance and Disobedience in Economic Activity is the Most Moral Human Action Possible' - SEK3

    Flectere si nequeo superos, Acheronta movebo.

    ...the familiar ritual of institutional self-absolution...
    ...for protecting them, by mock trial, from punishment...




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