Stoking the Flame of Liberty
One Case at a Time
By Timothy Sandefur
The Institute for Justice’s Human Action Network has given me an excellent opportunity to gain the kind of real-world, resume-building experience law students yearn for—all while working to advance liberty. As a member of HAN, I’ve worked with one of my professors (and fellow HAN member) John C. Eastman on amicus briefs in IJ’s case against the Tennessee casket monopoly, in defense of Ohio’s school choice program, and in challenging racial discrimination by the federal government.
During my summer clerkship at IJ and as a HAN member, I have come to see how working through the courts can help make the world a little freer for real people. Take, for instance, the market for caskets. In about a dozen states, regulations prohibit anyone except licensed funeral directors from selling a casket. Funeral directors can get very rich by making it illegal for customers to shop elsewhere.
Such licensing schemes are based on the pretext of "protecting the public," but what they really do is keep prices high and turn entrepreneurs into criminals. And it’s not the wealthy and powerful who want to start new companies—it’s poor people and immigrants who don’t want a handout, just an opportunity.
Intrigued by the casket situation, I looked into the history of the Fourteenth Amendment. I found that it was really meant to protect the right to earn a living, which had been protected by the common law for almost four centuries when the Amendment was written. In fact, in 1615, England’s Chief Justice, Edward Coke, held that "no man could be prohibited from working in any lawful trade, for the law abhors idleness". [T]herefore the common law abhors all monopolies, which prohibit any from working in any lawful trade."
When IJ took up the defense of the Reverend Nathaniel Craigmiles—an independent retailer in Chattanooga, Tennessee, who just wanted to sell high-quality caskets at a reasonable price—Professor Eastman and I were only too glad to draft an amicus brief. IJ won the case. I’d like to think our brief will help secure for the Reverend Craigmiles the right to earn an honest living, now that the State has appealed.
I think of the libertarian movement, and IJ in particular, as the modern-day version of the old abolitionists. Like them, we are fighting for the equal rights of all Americans to make a living, free from the interference of the politically powerful. Like the abolitionists, we run counter to the overwhelming current of legal opinion, which for 70 years has been antagonistic to the rights of private property and economic liberty. But we are growing. And being involved in HAN is a great way to help.
As lawyers and lawyers-in-training, we can do a great deal to help remove regulatory barriers for inner-city entrepreneurs, to protect the property of homeowners and small-business owners from arbitrary takings by government, and to defend the rights of parents to choose good schools for their children. IJ’s Human Action Network offers concrete opportunities to apply our skills in defense of such liberties by drafting briefs, conducting research, writing newspaper op-eds, and even taking on pre-screened pro bono work.
We can change the climate of legal opinion. Just by reading the local city newspaper, or attending city council meetings—even by simply explaining to people in everyday conversation what "eminent domain" really means—one can help stave off a little bit of "grassroots tyranny." Every little bit really does help, and every case really is important. What William Lloyd Garrison said in the 1830s is just as true today: "I have need to be all on fire," he said, "for I have mountains of ice about me to melt!"
Timothy Sandefur is a HAN member and third-year law student at Chapman University Law School. He has clerked for the Institute for Justice and will join the Pacific Legal Foundation as a College of Public Interest Law Fellow in September 2002.