A license to arrange flowers? Laws mandating higher prices during difficult financial times? Government lawyers defending economic regulations on the basis of possible extraterrestrial activity? Welcome to the wacky world of the constitutional right to earn a living, which since the 1930s has been relegated to the lowest level of protection by the Courts.

In this episode, the ladies discuss the origins of the “tiers of scrutiny” that apply depending on whether you’re talking about judicially favored rights, like free speech, or other rights, like the right to earn a living. In a scorching hot dissent from the 1930s, one justice seemed to predict how this lax treatment by the courts would affect entrepreneurship, innovation, and employment today.

Thanks to our guests Hadley Arkes, Timothy Sandefur, and Adam Thierer.

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