It seems that the prayers of economic libertarians might someday be answered. An opportunity to move back toward reinstituting the protections of economic freedoms (and away from the unbridled deference paid to police power legislation) has presented itself in the Great State of Louisiana.
This opportunity comes in the form of a Constitutional challenge, which may soon come before the Supreme Court, to the State’s restriction on the selling of caskets. The challenge was brought by the Brothers of Saint Joseph Abbey of the Benedictine Order of the Catholic Church.
Yes. Even the messengers of God must pay if they want to get in on an industry that has been secured for special interests by the powers that be (usually in exchange for political support).
You see, the brothers – who have mastered the craft of casket-making -decided to sell the renowned products of their labor and expertise in the marketplace by offering simple, elegant caskets at a lower cost than their competitors. No big deal right? Wrong. Apparently, Louisiana has a rather powerful funeral industry that successfully lobbied the state government to make sure that when it came to the business of selling caskets, they were the only game in town. That’s right. If you’re not a licensed funeral director who owns and operates a funeral home, it is a crime for you to sell a nicely-crafted wooden box anywhere in Louisiana.
If your intuitive response to this is to ask how in Sam Hill the government can get away with that kind of protectionist favoritism, the answer lies in two simple words: police power. This power to regulate in order to serve the end of promoting the health, safety and welfare of the public – once checked by courts willing to enforce sensible limitations on its exercise – has served as the default disguise of economic favors to special interests since the New Deal Court of the 1930s.
However, the practically-no-questions-asked approach of the police power-enlarging decisions and their progeny had a very famous (or infamous, depending on who you ask) predecessor in what is now referred to as simply the Lochner Era.
This era gets its name from Lochner v. New York – a case that liberals decry and libertarians long for – in which the Supreme Court struck down a New York state regulation limiting the number of hours a consenting adult could agree to work as a baker in any given day. New York, like many other state legislatures, claimed that its police power justified its intrusion on the freedom to contract. The Court saw through this veil, however, stating:
”It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?”