Overruled (19 page)

To capture that dispersed knowledge, the center put together three task forces organized around the subjects of economic liberty, property rights, and the First Amendment, three areas that Mellor and his colleagues had already identified as ripe for potential libertarian legal advocacy. Each task force consisted of a dozen or so experts in
the field, mostly law professors and economists, including big names such as Milton Friedman, who participated in seminar-type discussions aimed at gleaning their insights. Also present at those seminars was a designated author, charged with synthesizing and applying that information and producing what Mellor called a “strategic litigation blueprint.” “The idea there,” he explained, “was that it would be best if we had a book, or multiple books, that then could be disseminated to law schools and lawyers and the media and whatnot, to show some substance to this.”
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The final result was three books published by the Pacific Research Institute between 1990 and 1993, each one laying out a proposed line of future legal attack. Those books are
Unfinished Business: A Civil Rights Strategy for America's Third Century,
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Freedom, Technology and the First Amendment,
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and
Grand Theft and Petit Larceny: Property Rights in America.
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At last, Mellor and his allies were figuring out how to do libertarian public interest law right.

“The Necessity of Judicial Action”

The most influential of those three litigation blueprints was the book
Unfinished Business,
written by Clint Bolick, a former colleague of Mellor's at the Mountain States Legal Foundation and his longtime co-conspirator in the quest to create a libertarian public interest law firm. In 1991, the two men would together found the Institute for Justice. “The judicial nullification of economic liberty stands as one of the most pervasive and debilitating deprivations of civil rights in America today,”
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Bolick announced in
Unfinished Business,
and it was time to do something about it. Modeling his litigation strategy explicitly on that of the civil rights movement of the 1950s and 1960s, Bolick urged libertarian lawyers to bring a series of test cases, each one matching a sympathetic client with a government regulation that had been pre-selected for destruction. Through painstaking work, the libertarians
would then build up a body of favorable legal rulings against government overreach, thereby setting the stage for a future Supreme Court victory in their favor. This systematic approach, Bolick argued, was the best method for grappling with the significant disadvantages they faced under the rational-basis test. On top of that, Bolick counseled, they needed an overarching goal to keep their various efforts on track. “We should establish as our ultimate objective the reversal of
The Slaughter-House Cases,
much as the NAACP did when it set as its long-range goal the toppling of
Plessy v. Ferguson.
”
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Why
Slaughter-House
? Because, he explained, that was the case where the Supreme Court first unmoored the Fourteenth Amendment from its free labor origins. The libertarians would strike at the root of the problem and restore the Fourteenth Amendment as a shield for economic liberty.

A self-described “really nerdy kid,” Clint Bolick initially wanted to pursue a career in Republican politics until he “fell in love” with constitutional law after reading about the civil rights movement during his senior year in college. “Seeing cases like
Brown v. Board of Education
made me realize that one can achieve pretty radical change in the courts without having to compromise on principles,” he later explained. “You either win or you lose, and if you win you can fundamentally change the world.” That led him to law school at the University of California, Davis, where his political views took on an increasingly libertarian cast. After graduating in 1982, Bolick signed on as an attorney at the Mountain States Legal Foundation, where he began working with his future IJ co-founder Chip Mellor.

Like Mellor, Bolick also left Mountain States in the wake of the Denver cable case and moved east to Washington, where he accepted a position in the Reagan administration's Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal anti-discrimination laws. Heading up the EEOC at that time was a young and virtually unknown lawyer named Clarence Thomas.

“It really wasn't until I worked at the EEOC with Clarence Thomas that I began to think of economic liberty as a civil rights issue,” Bolick later remembered. The two men became fast friends, and spent many hours together talking about law and history. A frequent topic in those days was the original meaning of the Fourteenth Amendment. “In Clarence Thomas I found a real kindred spirit on this issue,” Bolick said. “He felt that the whole concept of civil rights had been mis-defined over the years, that when you look at it from a historical standpoint, the Civil Rights Act of 1866 was all about economic liberties. And that was a very exciting concept for me.”
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Another key influence on Bolick's thinking at that time came from reading the work of George Mason University economist Walter Williams, whose 1982 book
The State against Blacks
argued that government restrictions on economic liberty were particularly harmful to African Americans and other disadvantaged groups.
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A child of Philadelphia's Richard Allen housing projects, where his neighbors included a young Bill Cosby, Williams combined scholarly analysis with his own first-hand insights into the economic obstacles facing black Americans. “There are many laws in the United States that systematically discriminate against the employment and advancement of people who are outsiders, latecomers and poor in resources,”
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Williams argued, pointing to various licensing restrictions placed on occupations such as electrician, plumber, and taxi cab driver. Those regulations may not explicitly mention race, Williams observed, but “they are discriminatory in the sense that they deny full opportunity for the most disadvantaged Americans, among whom blacks are disproportionately represented.”
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Williams wanted to see those regulatory obstacles struck from the books, and Bolick became determined to see that result achieved through litigation.

Armed with such ideas, and with Clarence Thomas serving as both boss and mentor at the EEOC, Bolick began putting the whole thing
together into a coherent legal philosophy, ultimately writing a book on the subject called
Changing Course: Civil Rights at the Crossroads,
which appeared in 1988. If
Unfinished Business
was IJ's original strategic litigation blueprint for advancing economic liberty, then
Changing Course
was the first draft of that strategy. “The civil rights movement should seek to reverse
The Slaughter-House Cases,
which upheld the power of government to create monopolies and impede entrepreneurial opportunities,”
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Bolick wrote in
Changing Course.
But in order for that to happen, he continued, the doctrine of judicial deference must be rejected. “What the advocates of judicial abstinence overlook is the crucial role assigned by the Constitution to the judiciary in the protection of civil rights, without which the state will be free—as in the Jim Crow era—to subvert civil rights virtually unchecked.”
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In short, Bolick argued, the libertarian legal movement must embrace “the necessity of judicial action.”
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Three years later, with Mellor at the helm and Bolick serving as second-in-command, the Institute for Justice opened its doors and began putting that libertarian strategy into practice.

“Sympathetic Clients, Outrageous Facts, Evil Villains”

You know an IJ case when you see one. “We start with the principle we seek to vindicate,” Chip Mellor explained, “and the issue that enables us to do it. And then we look for sympathetic clients, outrageous facts, evil villains.” Take the principle of economic liberty, which IJ lawyers seek to vindicate by overturning economic regulations in court. The typical IJ client in such cases is a fledgling entrepreneur or small-business owner battling a government agency over some sort of preposterous red-tape requirement. But the real issue at stake, IJ's lawyers always tell the presiding
judge, is the right to earn an honest living, a fundamental civil right that is eminently worthy of judicial respect and protection.

For instance, in the first case IJ filed back in 1991,
Taalib-Din Abdul Uqdah v. District of Columbia,
the Institute represented the owner of an African hair-braiding salon, Cornrows & Co., who had run afoul of the District's requirement that he obtain a government-issued cosmetology license. That requirement made no sense, Mr. Uqdah tried explaining to city officials, because the lengthy (and costly) licensing process never once touched on even the rudiments of hair braiding or related techniques, and focused instead on things like chemical treatments and the execution of out-of-date hair styles that had been popular when the regulation first went into effect in the 1930s, such as “finger waves” and “pin curls.” In other words, the regulation had nothing to do with his business and did nothing to protect the health, welfare, or safety of anybody involved in the process of traditional African hair braiding. All it did was interfere with his ability to earn a living and pay his employees.

IJ agreed with that assessment, and on November 1, 1991, the Institute filed suit on Uqdah's behalf in the U.S. District Court for the District of Columbia. In the meantime, the D.C. City Council, spurred to action by the unwelcome media attention generated by the case, started rethinking its whole approach to cosmetology licensing. A little more than a year after the lawsuit was filed, the City Council voted to repeal the regulation. Thanks to the Institute for Justice, Cornrows & Co. was back in business.

It was a genuine libertarian victory over arbitrary government, and IJ's lawyers were thrilled to score their first win right out of the gate. But it was a legislative fix, not a judicial one, and IJ's long-term agenda centered on securing greater judicial protection for economic liberty. So the hunt for the next test case continued. “All along the issue of
occupational licensing was at the heart of our economic liberty work,” Mellor explained. “And so we were always looking for different occupations that were suffering from unreasonable licensing laws where there wasn't a fit between any arguable legitimate public health and safety rationale and the means by which the government is seeking to achieve that.”

That search ultimately led Mellor and his colleagues to the state of Tennessee, where, according to a law called the Funeral Directors and Embalmers Act, only state-licensed funeral directors were permitted to sell coffins to paying customers. And that government license did not come cheap. Would-be license holders had two options: either complete one year of classroom work and a one-year apprenticeship under a licensed funeral director, or forgo the classroom entirely in favor of a two-year apprenticeship. In either case, the training process required many hours of labor and study, including the embalming of twenty-five human bodies. “In order to sell a box, you had to be a fully licensed funeral director,” Mellor recalled, laughing in disbelief. “Once I saw that, it just jumped out.”

Mellor had no problem with the idea of requiring actual funeral directors to carry a license—after all, their work did involve legitimate public health issues such as handling human remains and embalming dead bodies. But this statute went far beyond that and applied to any retail entrepreneur who simply wanted to sell caskets for a living, and who never once came in contact with a dead body as part of her job. Meanwhile, as Mellor discovered, established funeral directors throughout the state were marking up the price of coffins by as much as 600 percent, yet thanks to the burdensome licensing requirements, upstart competitors were effectively barred from coming in to offer a better price. And while state officials claimed the law was there to protect the health and safety of the public, Mellor learned that Tennessee placed no regulations of any kind on the design or manufacture of
caskets. Indeed, it was perfectly legal in Tennessee to build your own casket for burial (with or without a sealed lid) or to be buried without a casket. “You start looking into it,” he said, and “it was just the perfect no-fit between any legitimate health and safety reason and all these burdens they are putting on.”
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So in September 1999 IJ filed suit in federal district court on behalf of several local entrepreneurs looking to break into the coffin business, including the case's lead client, the Reverend Nathaniel Craigmiles of Chattanooga, who had cofounded an operation called Craigmiles Wilson Casket Supply in order to offer his parishioners and their families a more affordable alternative. Eleven months later, IJ won the first round in the case. Despite the pro-government deference mandated by the rational-basis test, the federal district court struck down the regulation.

Tennessee promptly appealed the loss, and on December 6, 2002, the U.S. Court of Appeals for the Sixth Circuit came down with its decision on the matter in
Craigmiles v. Giles.
Once again, IJ was victorious. Having reviewed the evidence before him, wrote Judge Danny Boggs for a unanimous three-judge panel of the Sixth Circuit, he saw no reason to defer to the state's assertion that it had a rational basis for enacting the licensing law. “Tennessee's justifications,” Boggs declared, “come close to striking us with the force of a five-week-old, unrefrigerated dead fish.”
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