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At a Glance:
Title:
Patel v. Texas Department of Licensing & Regulation
Date:
June 26, 2015
Citation:
469 S.W.3d 69
Court:
Texas Supreme Court
Status:
Published Opinion

Patel v. Texas Department of Licensing & Regulation

Supreme Court of Texas.

Ashish PATEL, Anverali Satani, Nazira Momin, Minaz Chamadia, and Vijay Lakshmi Yogi, Petitioners/Cross–Respondents,

v.

TEXAS DEPARTMENT OF LICENSING AND REGULATION, et al., Respondents/Cross-Petitioners

NO. 12–0657

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Argued February 27, 2014

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OPINION DELIVERED: June 26, 2015

*72 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS.

Attorneys & Firms

*73 Arif Panju, Matthew R. Miller, Wesley Hottot, Institute for Justice, Bellevue, WA, for Petitioners.

Nancy K. Juren, Office of the Attorney General, Austin, for Respondents.

Richard Barrett Phillips Jr., Thompson & Knight LLP, Dallas, for Amicus Curiae Houston Belt & Terminal Railway Co., BNSF.

J. David Breemer, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.

C. W. “Rocky” Rhodes, Houston, for Amicus Curiae South Texas College of Law.

Opinion

Justice Devine joined.

In this declaratory judgment action several individuals practicing commercial eyebrow threading and the salon owners employing them assert that, as applied to them, Texas’s licensing statutes and regulations violate the Texas Constitution’s due course of law provision. They claim that most of the 750 hours of training Texas requires for a license to practice commercial eyebrow threading are not related to health and safety or what threaders actually do. The State concedes that over 40% of the required hours are unrelated, but maintains that the licensing requirements are nevertheless constitutional.

The trial court and court of appeals agreed with the State. We do not. We reverse and remand to the trial court for further proceedings.

I. Background

Eyebrow threading is a grooming practice mainly performed in South Asian and Middle Eastern communities. It involves the removal of eyebrow hair and shaping of eyebrows with cotton thread. “Threading,” as it is most commonly known, is increasingly practiced in Texas on a commercial basis. Threaders tightly wind a single strand of cotton thread, form a loop in it with their fingers, tighten the loop, and then quickly brush the thread along the skin of the client, trapping unwanted hair in the loop and removing it. In 2011, commercial threading became regulated in Texas when the Legislature categorized it as a practice of “cosmetology.” See TEX. OCC. CODE § 1602.002(a)(8) (“ ‘[C]osmetology’ means the practice of performing or offering to perform for compensation ... [the] remov[al] [of] superfluous hair from a person’s body using depilatories, preparations, or tweezing techniques....”). That categorization and its effects underlie this case.

In order to legally practice cosmetology in Texas a person must hold either a general operator’s license or, in certain instances, a more limited but easier-to-obtain esthetician license. Id. § 1602.251(a). Licensing requirements for general operators include completing a minimum of 1,500 hours of instruction in a licensed beauty culture school and passing a state-mandated test. Id. § 1602.254; 16 TEX. ADMIN. CODE § 83.10(36).

*74 The Texas Department of Licensing and Regulation (TDLR or the Department), which is governed by the Texas Commission of Licensing and Regulation (the Commission), is charged with overseeing individuals and businesses that offer cosmetology services. TEX. OCC. CODE §§ 51.051, .201(a), 1602.001–.002, 1603.001–.456. The executive director of TDLR is authorized to impose administrative fines of as much as $5,000 per violation, per day. See id. §§ 51.302, 1602.251.

In late 2008 and early 2009, TDLR inspected Justringz—a threading business with kiosk locations in malls across Texas—and found Nazira Nasruddin Momin and Vijay Lakshmi Yogi performing eyebrow threading without licenses. TDLR issued Notices of Alleged Violations to them for the unlicensed practice of cosmetology. Minaz Chamadia was also performing threading at Justringz without a license, but she was not cited by TDLR. The administrative hearings and fines pending against Momin and Yogi have been stayed pursuant to a Rule 11 Agreement. See TEX. R. CIV. P. 11.

Ashish Patel and Anverali Satani own threading salons named Perfect Browz. The State has not taken any administrative action related to Perfect Browz. Satani is the sole owner of another threading business, Browz and Henna. TDLR inspected and investigated Browz and Henna on the basis of complaints filed against it. Although Satani received two warnings for Browz and Henna employing unlicensed threaders, the Department did not issue a Notice of Alleged Violation. Like the proceedings against Momin and Yogi, prosecution of Browz and Henna has been stayed by agreement of the parties.

In December 2009, Patel, Satani, Momin, Chamadia, and Yogi (collectively, the Threaders) brought suit against TDLR, its executive director, the Commission, and the Commission’s members (collectively, the State) pursuant to the Uniform Declaratory Judgments Act (UDJA) seeking declaratory and injunctive relief. See Article I, § 19 of the Texas Constitution. They also sought a permanent injunction barring the State from enforcing the cosmetology scheme relating to the commercial practice of eyebrow threading against them.

The Threaders moved for summary judgment, contending that “application of the state’s cosmetology laws and administrative rules to the commercial practice of eyebrow threading is unconstitutional because it places senseless burdens on eyebrow threaders and threading businesses without any actual benefit to public health and safety.” The motion urged that the State could not constitutionally regulate the commercial practice of eyebrow threading as conventional cosmetology unless it could establish a real and substantial relationship between the statutes and regulations and the public’s health and safety, and the State could not meet this standard. The State filed both a plea to the jurisdiction and a traditional motion for summary judgment. By its plea to the jurisdiction, the State challenged the Threaders’ standing, contending that their claims were barred by sovereign immunity *75 and the redundant remedies doctrine. In its motion for summary judgment, the State asserted that the Threaders failed to show that Texas’s regulation of the practice of eyebrow threading deprived the Threaders of any substantive due process right protected by Article I, § 19 or to plead a privileges and immunities claim different from their substantive due process claim.

The district court denied the State’s plea to the jurisdiction, granted its motion for summary judgment, and denied the Threaders’ motion for summary judgment. Both parties appealed.

The court of appeals affirmed. Id. at 380.

In this Court the Threaders argue that (1) the real and substantial test governs substantive due process challenges to statutes and regulations affecting economic interests when the challenges are brought under Article I, § 19 of the Texas Constitution; (2) the cosmetology statutes and rules are unconstitutional as applied to the Threaders because they have no real and substantial connection to a legitimate governmental objective; and (3) even if rational basis review is the correct constitutional test, under the appropriate test, the statutes and regulations are unconstitutional as applied to the Threaders.

The State contends that (1) it is immune from declaratory judgment claims raising constitutional challenges to statutes; (2) the Threaders’ claims lack both justiciability and ripeness; (3) the claims are barred by the redundant remedies doctrine; (4) the business owners lack standing; (5) there is no real difference between the “real and substantial” and “rational relationship” tests for due process concerns; and (6) threading raises public health concerns, implicating valid governmental concerns, thus the challenged licensing statutes and regulations that address these concerns comport with the substantive due process requirements regardless of which test is applied.1

We address the arguments in turn, necessarily beginning with the jurisdictional issues the State raises. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.2012) (noting that if a court does not have jurisdiction, its opinion addressing any issues other than jurisdiction is advisory).

II. Jurisdiction

A. Sovereign Immunity

Sovereign immunity implicates a trial court’s jurisdiction, and, when it applies, precludes suit against a governmental entity. City of El Paso v. Heinrich, 284 S.W.3d 366, 370–72 (Tex.2009), the State argues that our more recent decisions indicate that we may be departing from that rule. We are not.

In Id. at 373.

We reconfirmed the point in Id.

In this case, the Threaders did not plead that the Department and Commission officials exceeded the authority granted to them; rather, they challenged the constitutionality of the cosmetology statutes and regulations on which the officials based their actions. The State proposes that an official can act ultra vires either by acting inconsistently with a constitutional statute or by acting consistently with an unconstitutional one. It urges that the Threaders’ claims fall within the “acting consistently with an unconstitutional statute” category. But the premise underlying the ultra vires exception is that the State is not responsible for unlawful acts of officials. Heinrich, 284 S.W.3d at 372. The State’s proposal would effectively immunize it from suits claiming a statute is unconstitutional—an illogical extension of that underlying premise.

Contrary to the State’s position, Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 634 (Tex.2010) (holding that allegations against the lottery commissioner were not ultra vires allegations because the claim challenged a statute and was not one involving a government officer’s action or inaction). Accordingly, because the Threaders challenge the validity of the cosmetology statutes and regulations, rather than complaining that officials illegally acted or failed to act, the ultra vires exception does not apply. The Department and the Commission are not immune from the Threaders’ suit.

B. Viability

Next, the State contends that the officials are immune from suit because the Threaders had to prove their claims in order to survive a plea to the jurisdiction. See Id. Because the Threaders’ pleadings presented a viable claim, they were sufficient.

C. Justiciability

Next, the State employs the doctrines of standing, ripeness, and redundant remedies to argue that the courts below, and this Court, lack jurisdiction because the claims of the Threaders are not justiciable. We consider each doctrine in turn.

1. Standing

The standing doctrine identifies suits appropriate for judicial resolution. Garcia, 893 S.W.2d at 518. The State argues that Patel and Satani—whose claims are based solely on their status as threading salon owners—lack standing because they fail both prongs of the standing test.

Generally, courts must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges. Andrade, 345 S.W.3d at 6 (“Because the voters seek only declaratory and injunctive relief, and because each voter seeks the same relief, only one plaintiff with standing is required.”).

Here, Momin and Yogi, the threaders who received Notices of Alleged Violation, have standing, and the State does not contend otherwise. First, they have suffered some actual restriction under the challenged statute because TDLR initiated regulatory proceedings against each of them pursuant to their alleged violations of the Texas cosmetology statutes and regulations. And second, they are contending that the statute unconstitutionally restricts their rights to practice eyebrow threading. Accordingly, because Momin and Yogi have standing, we need not analyze the standing of Patel and Satani.

The State also argues that because the Threaders seek attorneys’ fees, the relief ultimately awarded will not necessarily be identical. But standing is determined at the beginning of a case, and whether the relief ultimately granted is the same for all parties is not determinative of the question. Here, Momin and Yogi have standing to seek relief and that is all we need to determine. See Garcia, 893 S.W.2d at 518–19.

2. Ripeness

The State next argues that the claims brought by Patel, Satani, and Chamadia are not ripe because Patel, Satani, and Chamadia have not faced administrative enforcement. We disagree.

Under the ripeness doctrine, courts must “consider whether, at the time a lawsuit is filed, the facts are sufficiently developed ‘so that an injury has occurred or is likely to occur, rather than being contingent or remote.’ ” Id. at 852.

Here, although Patel, Satani, and Chamadia have not yet faced administrative enforcement, the threat of harm is more than conjectural, hypothetical, or remote. Satani’s business, Browz and Henna, has received two warnings for employing unlicensed threaders, and he has been referred to TDLR’s legal department for enforcement. Patel and Satani risk $5,000 in penalties daily for employing unlicensed threaders. Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 26 (Tex.App.–Austin 2008, pet. dism’d by agr.) (holding that a constitutional challenge to a state-licensing law is ripe when enforcement of the law is “sufficiently likely” to occur). Therefore, their claims are ripe.

3. Redundant Remedies

The State also seeks to dismiss the claims of the Threaders who have received *79 citations based on the redundant remedies doctrine. Under the redundant remedies doctrine, courts will not entertain an action brought under the UDJA when the same claim could be pursued through different channels. See, e.g., Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827 (1958) (holding “an action for declaratory judgment does not lie” in a suit that asserts a “direct attack upon the [agency’s] order by appeal”).

The State maintains that the Legislature has provided Momin and Yogi two alternative avenues under the Administrative Procedures Act (APA): (1) a suit for judicial review alleging that the administrative decision was “in violation of a constitutional or statutory provision,” TEX. GOV’T CODE § 2001.174(2)(A); or (2) a suit for a pre-enforcement declaratory judgment alleging “that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” Id. § 2001.038(a). The State contends that because either of those APA provisions permits Yogi and Momin to file suits that would redress their alleged injuries, they may not pursue relief under the UDJA.

We disagree with the State’s assertion that a favorable decision under Section 2001.174 of the APA—authorizing courts to review administrative decisions—would obviate the need for the relief the Threaders seek. See id. § 2001.174 (allowing state courts to reverse or remand existing agency orders, but not enjoin future ones). The available remedies on appeal from an administrative finding are limited to reversal of the particular orders at issue. Id. But the Threaders seek more than a reversal of the citations issued to Momin and Yogi. They seek prospective injunctive relief against future agency orders based on the statutes and regulations. Accordingly, because the declaration sought goes beyond reversal of an agency order, Section 2001.174 of the APA does not provide a redundant remedy.

The State’s contention that Section 2001.038 of the APA creates an avenue for pre-enforcement declaratory judgment that an agency rule is invalid and would redress the Threaders’ alleged injuries is likewise unavailing. When a plaintiff files a proceeding that only challenges the validity of an administrative rule, the parties are bound by the APA and may not seek relief under the UDJA because such relief would be redundant. See Leeper, 893 S.W.2d at 443–44. The APA defines a rule as:

(A) ... a state agency statement of general applicability that:

(i) implements, interprets, or prescribes law or policy; or

(ii) describes the procedure or practice requirements of a state agency;

(B) includ[ing] the amendment or repeal of a prior rule; and

(C) ... not includ[ing] a statement regarding only the internal management or organization of a state agency and not affecting private rights or procedures.

*80 TEX. GOV’T CODE § 2001.003(6). Here the Threaders challenge both rules as defined by the APA and statutes. Because the Threaders cannot attack the constitutionality of the statutes pursuant to Section 2001.038 of the APA, their UDJA claims are not barred by the redundant remedies doctrine.

Having concluded that the lower courts had jurisdiction, we turn to the merits.

III. Constitutionality of the Statutes and Regulations

A. Due Course of Law

Article I, § 19 of the Texas Constitution provides that

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

TEX. CONST. art. I, § 19.

We have at least twice noted that Texas courts have not been entirely consistent in the standard of review applied when economic legislation is challenged under Section 19 have mixed and matched three different standards of review through the years. They label those standards as: (1) real and substantial, (2) rational basis including consideration of evidence, and (3) no-evidence rational basis.

The Threaders argue that the first referenced standard—“real and substantial”—is exemplified by cases such as City of Coleman v. Rhone, 222 S.W.2d 646, 649 (Tex.Civ.App.–Eastland 1949, writ ref’d). They interpret this standard as one in which the reviewing court considers whether (1) the legislative purpose for the statute is a proper one, (2) there is a real and substantial connection between that purpose and the language of the statute as the statute functions in practice, and (3) the statute works an excessive or undue burden on the person challenging the statute in relation to the statutory purpose. They argue that the distinguishing characteristic of cases employing the standard is that the courts using it consider evidence concerning both the government’s purpose for a law and the law’s real-world impact on the challenging party.

The Threaders recognize that the real and substantial test affords less deference to legislative judgments than does the federal rational basis standard. But they point to Article I, § 19 of the Texas Constitution might afford more protections than does the Fourteenth Amendment. They claim that twenty other states utilize the “real and substantial” test.2

The Threaders present the second standard—“rational basis including consideration of evidence”—as being exemplified by cases such as Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586, 590–600 (Tex.Civ.App.–Austin 1969, writ ref’d n.r.e.). Courts applying this test, the Threaders *82 posit, lean heavily on the federal rational basis test and often weigh evidence—including expert testimony—to determine the purpose of a law and whether the law enacted to effect that purpose is reasonable.

The Threaders reference the third standard as “no evidence rational basis,” which they say is embodied in cases such as Texas Optometry Board v. Lee Vision Center, Inc., 515 S.W.2d 380, 385–86 (Tex.Civ.App.–Eastland 1974, writ ref’d n.r.e.). Under the no-evidence version of the rational basis test, they argue, economic regulations do not violate Section 19 if they have any conceivable justification in a legitimate state interest, regardless of whether the justification is advanced by the government or “invented” by the reviewing court, and evidence “seldom” matters.

The Threaders say both the “real and substantial” and “rational basis including consideration of evidence” standards have two prongs, with the first being the primary difference between them. The first prong of the real and substantial standard, they maintain, is whether the challenged statute or regulation has a real and substantial connection to a legitimate governmental objective. They contrast that test with the rational basis including consideration of evidence standard, which they argue is more lenient and favorable toward the government because it asks only whether a statute or regulation arguably could bear some rational relationship to a legitimate governmental objective. They further maintain that for both standards the second prong is whether, on balance, the challenged statute or rule imposes an arbitrary or unduly harsh burden on the challenger in light of the government’s objective.

In light of the parties’ contentions, we first briefly review the history of the due course of law language in Article I, § 19.

B. Development of the Standard

The Declaration of Rights of the 1836 Republic of Texas Constitution included three separate rights guaranteeing “due course of law” or the “due course of the law of the land”: (1) the sixth, which (among other protections) prevented an accused in a criminal proceeding from being “deprived of life, liberty, or property, but by due course of law”; (2) the eleventh, which provided that an injured person “shall have remedy by due course of law”; and (3) the seventh, which provided that “[n]o citizen shall be deprived of privileges, outlawed, exiled, or in any manner disenfranchised, except by due course of the law of the land.” REP. OF TEX. CONST. OF 1836, Declaration of Rights 6–7, 11, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1083 (Austin, Gammel Book Co. 1898).

In 1845, a group of delegates met to draft and propose Texas’s first state constitution. The committee responsible for drafting the Bill of Rights proposed including two due course of law clauses—not the three clauses in the Declaration of Rights of the 1836 Republic of Texas Constitution. Comm. on Bill of Rights & Gen. Provisions, Journals of the Convention, Assembled at the City of Austin on the Fourth of July, 1845, for the Purpose of Framing a Constitution for the State of Texas, assembled July 11, 1845, at 34 (Austin, Mine & Cruger 1845), available at http://tarlton.law.utexas.edu/constitutions/texas1845/journals. One of the suggested clauses protected an injured party’s right to have “remedy by due course of law.” Id. The other clause incorporated the criminal due *83 course of law protections from Section 6 of the Republic’s Declaration of Rights into a composite due course guarantee: “No citizen of this state shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disenfranchised, except by due course of the law of the land.” Id. Thus, the committee’s proposal added “life, liberty, property” to the existing due course of law guarantee, while removing the same phrase from the protections for the criminally accused. Id. The proposal also added “of this state” after the word “citizen.” The proposal was ratified as Article I, § 16 of the Texas Constitution of 1845.

The language in the Due Course of Law Clause was not changed in the Texas Constitutions adopted in 1861, 1866, and 1869. See TEX. CONST. art. I, § 19.

In 1873, two years before the convention that proposed the 1875 Texas Constitution, the United States Supreme Court interpreted the phrase “privileges or immunities” in the United States Constitution in the Id. at 74–78. Thus, discussions preceding proposal and adoption of the 1875 Texas Constitution were held against the backdrop of recent Supreme Court mandates placing guardianship of non-federal rights of individuals squarely in the hands of the states. See DEBATES IN THE TEXAS CONSTITUTIONAL CONVENTION OF 1875, 292 (Seth S. McKay ed., Univ. of Tex. 1930).

Ratification of the Fourteenth Amendment to the United States Constitution in 1868 seemed to hasten development of substantive due process jurisprudence. See THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 354–56 (1868). The view in Texas was the same, as exemplified by cases such as Houston & Texas Central Railway Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648 (1905), the Court considered the constitutionality of a municipal ordinance governing railroad crossing grades. The Court explained that

it may often become necessary for courts, having proper regard to the constitutional safeguard ..., to inquire as to the existence of the facts upon which a given exercise of the [police] power rests, and into the manner of its exercise, and if there has been an invasion of property rights under the guise of this power, without justifying occasion, or in an unreasonable, arbitrary, and oppressive way, to give to the injured party that protection which the Constitution secures.

Id.

Texas judicial decisions in the nineteenth and early twentieth century indicated that the Texas Due Course of Law Clause and the federal Due Process Clause were nearly, if not exactly, coextensive. Such decisions generally tracked the thinking expressed by the Court in Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887)).

As to federal due process standards, this period before 1935 is sometimes referred to as the “Id. at 45–47, 58, 25 S.Ct. 539. The Court determined that the legislatively declared purpose for an enactment could be disregarded by a court reviewing challenges to the statute and that

[t]he purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose....

...[T]his section of the statute ... has no such direct relation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law.

Id. Because the Fourteenth Amendment did not permit such a regulation without a legitimate health and safety justification, the Court struck down the law. Justice Holmes, in dissent, advanced a much more deferential standard of review:

We [have] said that the power of the courts to review legislative action in respect of a matter affecting the general welfare exists only when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.... If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.

Id. at 68, 25 S.Ct. 539 (Holmes, J., dissenting) (emphasis added) (internal quotation marks omitted).

The Court remained within the bounds charted by Lochner era,” substantive due process *86 was a touchstone by which courts analyzed both the purpose and the effect of governmental economic regulation by scrutinizing them with a somewhat equivocal deference to the legislative body’s pronounced purpose for a law and its choice of the method embodied in the law to achieve that purpose.

The federal landscape changed in 1938. In United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the Supreme Court pronounced that

regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis.

Williamson v. Lee Optical of Oklahoma, Inc., the Supreme Court explained that

[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.

348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

Texas courts were faced with the question of whether, after Mabee, 175 S.W. at 680. As the parties to this case—and numerous Texas courts and commentators—have pointed out, the answer has not been made clear as to substantive due process challenges to governmental regulation of economic interests. As set out more fully above, the Threaders argue that in some cases this Court4 as well as courts of appeals have continued using a less deferential, heightened-scrutiny standard of review, while in some cases different ones have been applied.

Following the lead of our prior jurisprudence, we conclude that the Texas due course of law protections in Milliken, 54 Tex. at 394 (stating the constitutional inquiry was whether statute operated “unreasonabl[y] and in contravention of common right”).

In sum, statutes are presumed to be constitutional. To overcome that presumption, the proponent of an as-applied challenge to an economic regulation statute under Section 19’s substantive due course of law requirement must demonstrate that either (1) the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or (2) when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.

To be clear, the foregoing standard includes the presumption that legislative enactments are constitutional, e.g., Garcia, 893 S.W.2d at 520.

C. Application: The Texas Cosmetology Statutes and Regulations

The Threaders do not contend that the State’s licensing of the commercial practice of cosmetology is not rationally related to a legitimate governmental interest. *88 5 But they strongly urge that the number of hours of training required to obtain even an esthetician license has an arbitrary and unduly burdensome effect as applied to them because the 750–hour requirement has no rational connection to reasonable safety and sanitation requirements, which the State says are the interests underlying its licensing of threaders. In resolving the issue, we consider the entire record. Garcia, 893 S.W.2d at 520.

Several statutes address safety standards and sanitary conditions relating to cosmetology. See .21(c), .21(e). Those training programs must devote at least 225 hours of instruction to facial treatments, cleansing, masking, and therapy; 90 hours to anatomy and physiology; 75 hours to electricity, machines, and related equipment; 75 hours to makeup; 50 hours to orientation, rules, and laws; 50 hours to chemistry; 50 hours to care of clients; 40 hours to sanitation, safety, and first aid; 35 hours to management; 25 hours to superfluous hair removal; 15 hours to aroma therapy; 10 hours to nutrition; and 10 hours to color psychology. Id. § 83.120(b). Commission-approved beauty schools are not required to teach threading techniques. The schools are required to provide 25 hours of instruction in superfluous hair removal, which encompasses threading, but individual schools decide which techniques to teach. The record reflects that fewer than ten of the 389 Commission-approved Texas beauty schools teach threading techniques, and only one of those devotes more than a few hours to them. Further, threading techniques are not required to be part of the mandated tests. Both the practical and written tests are administered and scored by a third-party testing firm. The firm’s testing guidelines show that the practical examination is an hour and thirty minutes in length and includes sanitation, disinfection and hair removal, but does not include threading, although a test-taker may elect to remove six hairs from the model’s eyebrow using thread instead of tweezers during part of the exam. Nor does the written examination include questions as to threading techniques, although it includes globally relevant questions about sanitation, disinfection, and safety.

As shown above, of the 750 hours of required instruction for an esthetician license, 40 are required to be directly devoted to sanitation, safety, and first aid. Id. *89 But in addition, hygiene and sanitation are covered as they relate to four other portions of the curriculum: facial treatment, anatomy, rules and laws, and superfluous hair removal. Hygiene and sanitation are also addressed in the written and practical licensing exams, along with other topics including disinfection and safety.

One argument the Threaders make, which at its core challenges the rationality of any required training, is that the unlicensed practice of eyebrow threading is simply not a threat to public health and safety. In support of the argument they reference their expert witness who submitted a report addressing all of the available medical literature on eyebrow threading, as well as her own empirical analysis of the technique’s safety. Based on her investigation and professional experience with eyebrow threading, the expert concluded that threading is safe and, from a medical perspective, requires nothing more than basic sanitation training.

But the Threaders’ expert also raised public health concerns during her testimony. She testified that threading may lead to the spread of highly contagious bacterial and viral infections, including impetigo, and staphylococcus aureus, among others. She also agreed that failure to utilize appropriate sanitation practices—for example, proper use of disposable materials, cleaning of work stations, effective hand-washing techniques, and correct treatment of skin irritations and abrasions—can further expose threading clients to infection and disease.

Moving beyond the argument that threading does not pose health risks to begin with, the Threaders contend that as many as 710 of the required 750 training hours for an esthetician license are not related to properly training threaders in hygiene and sanitation, considering the activities they actually perform. The State argues that the Threaders greatly exaggerate the number of unrelated hours, but concedes that as many as 320 of the curriculum hours are not related to activities threaders actually perform.

Differentiating between types of cosmetology practices is the prerogative of the Legislature and regulatory agencies to which the Legislature properly delegates authority. And it is not for courts to second-guess their decisions as to the necessity for and the extent of training that should be required for different types of commercial service providers. But we note in passing that persons licensed to apply eyelash extensions—a specialty involving the use of chemicals and a high rate of adverse reactions—are required to undergo only 320 hours of training. See id. We also note that when the Threaders filed suit, hair braiders were required to undergo only 35 hours of training, 16 of which were in health and safety. See id. § 83.120(b). Hair braiding, however, has since been deregulated by the Legislature. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 1602.002(2), 1999 Tex. Gen. Laws 1431, 2186, repealed by Act of May 22, 2015, 84th Leg., R.S., H.B. 2717 (to be codified at 1602.003(b)(8)).

The fact that approximately 58% of the minimum required training hours are arguably relevant to the activities threaders perform, while 42% of the hours are not, is determinative of the aspect of the second prong of the as-applied standard which asks whether the effect of the requirements as a whole could be rationally related to the governmental interest. They could be. But the percentage must also be considered along with other factors, such as the quantitative aspect of the hours represented by that percentage and the *90 costs associated with them when determining the other aspect of the second prong—whether the licensing requirements as a whole are so burdensome as to be oppressive to the Threaders. Where the number of hours required and the associated costs are low, the ratio of required hours to arguably relevant hours is less important as to the burdensome question. But its importance increases as the required hours increase. For example, if the statute and Commission’s rules required ten hours of training for a threader to be licensed and 58 percent, or 5.8 hours, were arguably relevant to what threaders do, the burden of the irrelevant hours would weigh less heavily in determining whether the effect of the requirements as a whole on aspiring threaders is oppressive. In the case of the Threaders, however, the large number of hours not arguably related to the actual practice of threading, the associated costs of those hours in out-of-pocket expenses, and the delayed employment opportunities while taking the hours makes the number highly relevant to whether the licensing requirements as a whole reach the level of being so burdensome that they are oppressive.

The dividing line is not bright between the number of required but irrelevant hours that would yield a harsh, but constitutionally acceptable, requirement and the number that would not. Even assuming that 430 hours (a number the Threaders dispute) of the mandated training are arguably relevant to what commercial threaders do in practice, that means threaders are required to undergo the equivalent of eight 40–hour weeks of training unrelated to health and safety as applied to threading. The parties disagree about the costs of attending cosmetology training required for a license to practice threading. The Threaders point to evidence that the cost averages $9,000. The State says the $9,000 cost is for private schools while public schools charge only $3,500. Given the record as to the number of hours of training required for subjects unrelated to threading, our decision neither turns on, nor is altered by, the exact cost. But the admittedly unrelated 320 required training hours, combined with the fact that threader trainees have to pay for the training and at the same time lose the opportunity to make money actively practicing their trade, leads us to conclude that the Threaders have met their high burden of proving that, as applied to them, the requirement of 750 hours of training to become licensed is not just unreasonable or harsh, but it is so oppressive that it violates Article I, § 19 of the Texas Constitution.

IV. Response to the Dissents

The dissenting Justices say four things that bear responding to. First, they say that measuring the effects of the provisions by an “oppressive” standard is to measure it by no standard at all. Post at 135 (Hecht, C.J., dissenting); post at 142 (Guzman, J., dissenting). The actuality of the matter is that the standard they propose for measuring the effects of the provisions is for all practical purposes no standard. The only way an enactment could fail the test the dissenters advocate is if the purpose of the enactment were completely mismatched with—that is, it bore no rational relationship to—the provisions enacted to effect it. For example, assume in this case the record demonstrated conclusively, or the State conceded, that the Threaders are right and only 40 hours of the required training are relevant to safety and sanitation in performing threading. It would not matter under the CHIEF JUSTICE’S proposed standard. For under that standard, so long as at least some part of the required training could be rationally related to safety and sanitation, the entire *91 750 hours are rationally related because the provisions as a whole “might achieve the objective.” Post at 139. The logical result of such standard would be that if the State were to require 1,500 or even more hours of training, the increased requirement would pass constitutional muster. Why is that so? Because if 40 hours of training might conceivably effect the Legislature’s purpose and be constitutional, then any greater number that included that same 40 hours would also.

Second, the CHIEF JUSTICE references a small minority of other states that require threaders to be licensed either explicitly or by generally requiring licensing of those who commercially remove superfluous hair. Post at 128. But the Threaders neither contest the rationality of the State’s requiring them to be licensed, nor the requirement that they take training in subjects such as sanitation and hygiene. What they contest is the excessiveness of the training requirements given the magnitude of the irrelevant training. And whether that excessive requirement violates the Texas Constitution is not determined by the relationship between other states’ statutes and regulations and their respective constitutions.

Third, the CHIEF JUSTICE says that articulating and weighing factors such as the cost and relevance of the required training in considering the constitutionality of the provisions is “generally referred to as legislating” and should not be done by judges, post at 135, and JUSTICE GUZMAN asserts that any line drawing in this case should be done by the Legislature, post at 143. But providing standards for measuring the constitutionality of legislative enactments is not only a judicial prerogative—it is necessary in order to make the law predictable and not dependent on the proclivities of whichever judge or judges happen to be considering the case. Indeed, the dissenting Justices would reach the result they propose by measuring the licensing provisions against standards—the standards of “rational relationship” jurisprudence—just different standards. Post at 138–39. Expressing factors by which a statute’s constitutionality is to be measured and by which we reach our decision is not legislating; it is judging and providing guidance for courts to use in future challenges to statutes or regulations, which history tells us will come.

Fourth, the CHIEF JUSTICE refers to rediscovering and unleashing “the Lochner monster” if legislative enactments are measured against a standard other than the rational relationship standard. Post at 138. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a “monster” running amuck in Texas, this Court would have long ago decisively dealt with it.

Courts must extend great deference to legislative enactments, apply a strong presumption in favor of their validity, and maintain a high bar for declaring any of them in violation of the Constitution. But judicial deference is necessarily constrained where constitutional protections are implicated.

V. Conclusion

The provisions of the Texas Occupations Code and Commission rules promulgated pursuant to that Code requiring the individual Threaders to undergo at least 750 hours of training in order to obtain a state license before practicing commercial threading violate the Texas Constitution.

We reverse the judgment of the court of appeals and remand the case to the trial *92 court for further proceedings in accordance with this opinion.

Justice Willett filed a concurring opinion, in which Justice Devine joined.

Justice Boyd filed a concurring opinion.

Chief Justice Brown joined.

Justice Guzman filed a dissenting opinion.

Justice Willett, joined by Justice Devine, concurring.

that my hands were my own, and could earn more of the precious coin.... I was not only a freeman but a free-working man, and no master Hugh stood ready at the end of the week to seize my hard earnings.1

Frederick Douglass’s irrepressible joy at exercising his hard-won freedom captures just how fundamental—and transformative—economic liberty is. Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.2

Texans are doubly blessed, living under two constitutions sharing a singular purpose: to secure individual freedom, the essential condition of human flourishing. In today’s age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America’s defining value.3 But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th- and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy).

One of our constitutions (federal) is short, the other (state) is long—like really long—but both underscore liberty’s primacy right away. The federal Constitution, in the first sentence of the Preamble, declares its mission to “secure the Blessings of Liberty.”4 The Texas Constitution likewise wastes no time, stating up front in the Bill of Rights its paramount aim to recognize and establish “the general, great and essential principles of liberty and free government.”5 The point is unsubtle and undeniable: Liberty is not provided by government; *93 liberty preexists government. It is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.

* * *

Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.6

This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint? The Texas Constitution confers power—but even more critically, it constrains power. What are the outer-boundary limits on government actions that trample Texans’ constitutional right to earn an honest living for themselves and their families? Some observers liken judges to baseball umpires, calling legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on occupational freedom? Are the most patently farcical and protectionist restrictions nigh unchallengeable, or are there, in fact, judicially enforceable limits?

This case raises constitutional eyebrows because it asks building-block questions about constitutional architecture—about how we as Texans govern ourselves and about the relationship of the citizen to the State. This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.

The U.S. Supreme Court has repeatedly declared that the right to pursue a lawful calling “free from unreasonable governmental interference” is guaranteed under the federal Constitution,7 and is “objectively, deeply rooted in this Nation’s history and tradition.”8 A pro-liberty presumption is also hardwired into the Texas Constitution, which declares no citizen shall be “deprived of life, liberty, property, [or] privileges or immunities”9—phrasing that indicates citizens already possess these freedoms, and government cannot take them “except by the due course of the law of the land.”10 Texans are thus presumptively free, and government must justify its deprivations. So just how nonsensically can government stifle your constitutional right to put your know-how and gumption to use in a gainful trade?

I recognize the potential benefits of licensing: protecting the public and preventing charlatanism. I also recognize the proven benefits of constitutional constraints: protecting the public and preventing collectivism. Invalidating irrational laws does not beckon a Dickensian world of run-amok frauds and pretenders. The Court’s view is simple, and simply stated: Laws that impinge your constitutionally *94 protected right to earn an honest living must not be preposterous.

By contrast, the dissents see government power in the economic realm as infinitely elastic, and thus limited government as entirely fictive, troubling since economic freedom is no less vulnerable to majoritarian oppression than, say, religious freedom—perhaps more so. Exalting the reflexive deference championed by Progressive theorists like Justice Oliver Wendell Holmes, Jr., the dissents would seemingly uphold even the most facially protectionist actions. Stranger still, the principal dissent, while conceding that our state and federal Constitutions protect economic liberty, quotes liberally from Justice Holmes, who rejected that the Fourteenth Amendment does any such thing.11

In any event, as Justice Holmes cruelly proved, dogmatic majoritarianism can exact a ruthless price. In Buck v. Bell, the U.S. Supreme Court considered whether Carrie Buck, a Virginia teenager raped and impregnated by her foster parents’ nephew, could be forcibly sterilized on grounds that she was “feeble minded.”12 Speaking through Justice Holmes, the Court credulously accepted at face value the government’s assertion that public welfare was a good-enough reason to forbid the “manifestly unfit from continuing their kind.”13 Compulsory sterilization was preferable to waiting to “execute degenerate offspring for crime, or to let them starve for their imbecility.”14 Nothing—not even coercive eugenics—trumped judicial submissiveness to whatever the majority decreed. Justice Holmes was unyielding, thundering one of the most heartless, ignominious lines in Supreme Court history: “Three generations of imbeciles are enough.”15

Justice Holmes later boasted to a friend that “[it] gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles.”16 Unquestioning deference necessarily meant civil *95 liberties were trampled, but Justice Holmes’s pro-statism minced no words: “a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”17 In fact, said Justice Holmes, “if my fellow citizens want to go to Hell I will help them. It’s my job.”18

Like the Court, I favor a less hard-hearted and more liberty-minded view for Texas, one that sees the judiciary as James Madison did when he introduced the Bill of Rights, as an “impenetrable bulwark” against imperious government.19 The Texas Constitution enshrines structural principles meant to advance individual freedom; they are not there for mere show. Our Framers opted for constitutional—that is, limited—government, meaning majorities don’t possess an untrammeled right to trammel. The State would have us wield a rubber stamp rather than a gavel, but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism, and thus forsake what Chief Justice Marshall called their “painful duty”—“to say, that such an act was not the law of the land.”20

To be sure, the Capitol, not this Court, is the center of policymaking gravity, and judges are lousy second-guessers of the other branches’ economic judgments. Lawmakers’ policy-setting power is unrivaled—but it is not unlimited. Preeminence does not equal omnipotence. Politicians decide if laws pass, but courts decide if those laws pass muster. Cases stretching back centuries treat economic liberty as constitutionally protected—we crossed that Rubicon long ago—and there is a fateful difference between active judges who defend rights and activist judges who concoct rights. If judicial review means anything, it is that judicial restraint does not allow everything. The rational-basis bar may be low, but it is not subterranean.

I support the Court’s “Don’t Thread on Me” approach: Threaders with no license are less menacing than government with unlimited license.

I.

This case lays bare a spirited debate raging in legal circles, one that conjures legal buzzwords and pejoratives galore: activism vs. restraint, deference vs. dereliction, adjudication vs. abdication. The rhetoric at times seems overheated, but the temperature reflects the stakes. It concerns the most elemental—if not elementary—question of American jurisprudence: the proper role of the judiciary under the Constitution.

Judicial duty requires courts to act judicially by adjudicating, not politically by legislating. So when is it proper for a court to strike down legislative or executive action as unconstitutional? There are people of goodwill on both sides, and as this case demonstrates, it seems a legal Rorschach test, where one person’s “judicial engagement” is another person’s “judicial *96 usurpation.”21

There are competing visions, to put it mildly, of the role judges should play in policing the other branches, particularly when reviewing economic regulations. On one side is the Progressive left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge Robert Bork falls into this camp. A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.22 As Judge Bork put it, “majorities are entitled to rule, if they wish, simply because they are majorities.”23

The other side advocates “judicial engagement” whereby courts meaningfully enforce constitutional boundaries, lest judicial restraint become judicial surrender.24 The pro-engagement camp argues the judiciary should be less protective of Leviathan government and more protective of individual freedom. Government exists, they contend, to secure pre-existing rights, as the Declaration makes clear in its first two paragraphs.25 Thus, when it comes to judicial review of laws burdening economic freedoms, courts should engage forthrightly, and not put a heavy, pro-government thumb on the scale.

This much is clear: Spirited debates over judicial review have roiled America since the Founding, from Worcester v. Georgia27 (against which President Jackson bellowed, “John Marshall has made his decision—now let him enforce it.”28), to the late 19th and early 20th centuries, when Progressives opposed judicial enforcement of economic liberties, all the way to present-day battles over the Patient Protection and Affordable Care Act.29 In the 1920s and 1930s, liberals began backing judicial protection *97 of noneconomic rights, while resisting similar protection for property rights and other economic freedoms. The Progressives’ preference for judicial nonintervention was later embraced by post-New Deal conservatives like Judge Bork. The judicial-review debate, both raucous and reasoned, is particularly pitched today within the broader conservative legal movement. A prominent fault line has opened on the right between traditional conservatives who champion majoritarianism and more liberty-minded theorists who believe robust judicial protection of economic rights is indispensable to limited government.30

When it comes to regulating the economy, Holmesian deference still dominates, as seen in the Supreme Court’s landmark 2012 decision upholding the constitutionality of the Affordable Care Act.31 During oral argument, the Solicitor General—echoing the dissenters in today’s case—admonished that striking down President Obama’s signature health-care law would amount to judicial activism that would “import Lochner-style substantive due process.”32 The Court, he implored, “has a solemn obligation to respect the judgments of the democratically accountable branches of government.”33 A few days later, the President himself charged it would constitute raw judicial activism if the Court took the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,”34 adding, “We have not seen a court overturn a law that was passed by Congress on an economic issue ... for decades”—“We’re going to the ‘30s, pre-New Deal.”35 We know how the story ended. The Court upheld the ACA on tax-power grounds, with Chief Justice Roberts famously stating, “It is not our job to protect the people from the consequences of their political choices.”36

*98 Today’s case arises under the Texas Constitution, over which we have final interpretive authority, and nothing in its 60,000—plus words requires judges to turn a blind eye to transparent rent-seeking that bends government power to private gain, thus robbing people of their innate right–antecedent to government—to earn an honest living. Indeed, even if the Texas Due Course of Law Clause mirrored perfectly the federal Due Process Clause, that in no way binds Texas courts to cut-and-paste federal rational-basis jurisprudence that long post-dates enactment of our own constitutional provision, one more inclined to freedom.

The principal dissent claims “the rational basis standard invokes objective reason as its measure,” a contention difficult to take seriously.37 Legal fictions abound in the law, but the federal “rational basis test” is something special; it is a misnomer, wrapped in an anomaly, inside a contradiction. Its measure often seems less objective reason than subjective rationalization. The dissent also says the fact that other states regulate threading provides “strong evidence that Texas’s regulatory framework has a rational basis.”38 In my view, what happens in the Aloha State makes not the slightest constitutional difference in the Lone Star State. Unconstitutional encroachments reach across time zones and centuries. Just this week, in a case that took almost 80 years to bring, the U.S. Supreme Court struck down as unconstitutional a New Deal-era, raisin-confiscation regime that had spanned thirteen Presidents.39

The test adopted today bears a passing resemblance to “rational basis”-type wording, but this test is rational basis with bite, demanding actual rationality, scrutinizing the law’s actual basis, and applying an actual test.40 In my view, the principal *99 dissent is unduly diffident, concluding the threading rules, while “excessive”41 and “obviously too much”42 are not “clearly arbitrary.”43 If these rules are not arbitrary, then the definition of “arbitrary” is itself arbitrary. Without discussing (or even citing) recent federal cases striking down nonsensical licensing rules under the supine federal test,44 the dissents sever “rational” from “rational basis,” loading the dice—relentlessly—in government’s favor.45 Their test is tantamount to no test at all; at most it is pass/fail, and government never fails.46

*101 II.

You take my house when you do take the prop /

That doth sustain my house; you take my life /

When you do take the means whereby I live.47

Government understandably wants to rid society of quacks, swindlers, and incompetents. And licensing is one of government’s preferred tools, aiming to protect us from harm by credentialing certain occupations and activities. You can’t practice medicine in Texas without satisfying the Board of Medical Examiners. You can’t zoom down SH–130 outside Austin at 85 miles per hour (reportedly the highest speed limit in the Western Hemisphere) without a driver’s license. Sensible rules undoubtedly boost our quality of life. And senseless rules undoubtedly weaken our quality of life. Governments at every level—national, state, and local—wield regulatory power, but not always with regulatory prudence, which critics say stymies innovation, raises consumer prices,48 and impedes economic opportunity with little or no concomitant public benefit.49 The academic literature has attained consensus: “a licensing restriction can only be justified where it leads to better quality professional services—and for many restrictions, proof of that enhanced quality is *102 lacking.”50

It merits repeating: Judicial duty does not include second-guessing everyday policy choices, however improvident. The question for judges is not whether a law is sensible but whether it is constitutional. Does state “police power”—the inherent authority to enact general-welfare legislation—ever go too far? Does a Texas Constitution inclined to limited government have anything to say about government irrationally subjugating the livelihoods of Texans?

A.

The Republic of Texas regulated just one profession: doctors.51 In 1889, the State of Texas added one more: dentists.52 Until the mid–20th century, occupational regulation in the Lone Star State was rare (aside from the post-Prohibition alcohol industry)53 and was generally limited to professions with a clear public-safety impact: nurses, pharmacists, optometrists, engineers, etc.

Since World War II, however, the economy, both nationally and here in Texas, has undergone a profound shift. States now assert licensing authority over an ever-increasing range of occupations, particularly in the fast-growing service sector, which makes up “three-quarters of gross domestic product and most job growth in the U.S.”54 During the 1950s, fewer than five percent of American workers needed a state license.55 By 1970 it had doubled to 10 percent, and by 2000 had doubled again.56 In 2006, nearly one-third of U.S. *103 workers needed government permission to do their job.57

This spike in licensing coincides with a decline in labor-union membership. “In fact, [occupational licensing] has eclipsed unionization as the dominant organizing force of the U.S. labor market.”58 Twice as many workers today are covered by licensing as by labor contracts.59 Moreover, the pervasiveness of licensing seems unrelated to whether a state is labeled “red” or “blue” politically. Occupational regulation seems wholly disconnected from party-specific ideology. In addition, most economic regulations are enacted not by legislatures answerable to voters but by administrative bodies, often with scant oversight by elected officials.

The Lone Star State is not immune from licensure proliferation. An ever-growing number of Texans must convince government of their fitness to ply their trade, spurring the House Committee on Government Efficiency and Reform in 2013 to lament the kudzu-like spread of licensure: “The proliferation of occupational licensing by the State of Texas can be to the detriment of the very consumer the licensing is professing to protect.”60 Today the number of regulated occupations exceeds 50061—about 2.7 million individuals and businesses,62 roughly one-third of the Texas workforce,63 higher than the national average64—with many restrictions backed by heavy fines and even jail time. Importantly, these statistics reflect state-only regulations; local and federal rules raise the number of must-be-licensed workers higher still.65

Unlike some states, Texas doesn’t yet require florists,66 interior designers,67 horse massagers,68 ferret breeders,69 or *104 fortune tellers70 to get state approval (though the soothsayers would presumably see it coming). But the Lone Star State does require state approval to be a shampoo apprentice.71 And to be an in-person auctioneer72 (though not to be an internet auctioneer). And while you don’t need a license to be a bingo caller in Texas, you must be listed on the Registry of Approved Bingo Workers in order to yell out numbers and letters.73

The “sum of good government,” Thomas Jefferson said in his first inaugural, was one “which shall restrain men from injuring one another”—indisputably true—but “shall leave them otherwise free to regulate their own pursuits of industry and improvements.”74 Without question, many licensure rules are justified by legitimate public health and safety concerns. And isolating the point at which a rule becomes unconstitutionally “irrational” eludes mathematical precision. But it is no more imprecise as when judges ascertain under the Constitution when a search is “unreasonable”75 or bail “excessive”76 or cause “probable”77 or punishment “cruel and unusual.”78 Degree of difficulty aside, judges exist to be judgmental, hence the title.

The Texas Constitution has something to say when barriers to occupational freedom are absurd or have less to do with fencing out incompetents than with fencing in incumbents. As Nobel economist Milton Friedman observed, “the justification” for licensing is always to protect the public, but “the reason” for licensing is shown by observing who pushes for it—usually those representing not consumers but vested, already-licensed practitioners.79 In other words, government’s coercive power is often wielded to quash newcomers. As two federal appellate judges provocatively put it, “The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free reign to subjugate the common good and individual liberty to the electoral calculus of politicians, the whims of majorities, or the self-interest of factions.”80 Summarizing: “Rational basis review means property is at the mercy of the pillagers. *105 The constitutional guarantee of liberty deserves more respect—a lot more.”81

Indeed, some fret that the focus of occupational regulation has morphed from protecting the public from unqualified providers to protecting practitioners from unwanted competition. Courts are increasingly asking whether societal benefits are being subordinated to the financial benefits of those lucky enough to be licensed. The U.S. Court of Appeals for the Fifth Circuit recently buried the so-called “casket cartel” in Louisiana, siding 3–0 with a group of woodworking Benedictine monks who supported their monastery by selling handcrafted pine coffins. State-licensed funeral directors found the competition unwelcome, and the monks were threatened with a fine and jail time for breaching Louisiana law that said only state-licensed funeral directors could sell “funeral merchandise.” In striking down the anticompetitive law, the Fifth Circuit explained: “The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or to the context of its adoption nor does it require courts to accept nonsensical explanations for regulation.”82 While acknowledging that Williamson insists upon a rational basis,” adding, “a hypothetical rationale, even post hoc, cannot be fantasy” or impervious to “evidence of irrationality.”84

A similar casket-cartel law was invalidated in 2002 by the U.S. Court of Appeals for the Sixth Circuit, the first federal appellate court since the New Deal to invalidate an economic regulation for offending economic liberties secured by the Fourteenth Amendment.85 The court found no *106 sensible connection between the onerous licensing requirements and the law’s alleged “health and safety” purpose. The court rejected the state’s predictable cries of “Lochnerism” and said the alleged bases for the law came close to “striking us with ‘the force of a five-week-old, unrefrigerated dead fish.’ ”86 The Sixth Circuit concluded it was ludicrous to see the law as anything but “an attempt to prevent economic competition,”87 and that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”88 Granting special economic favors to preferred interests may be a common government purpose—“the favored pastime of state and local governments,” as the Tenth Circuit put it89—but common doesn’t mean constitutional. Merely asserting—and accepting—“Because government says so” is incompatible with individual freedom. Courts need not be contortionists, ignoring obvious absurdities to contrive imaginary justifications for laws designed to favor politically connected citizens at the expense of others.

More and more, courts—even comedians90—are scrutinizing the entry barriers imposed by occupational regulations. Earlier this year, a federal district court in Austin rejected the state’s attempt to force a teacher of African hair braiding to meet state barber-school regulations.91 Isis Brantley was vexed as to why her Institute of Ancestral Braiding needed a 2,000–square foot facility, 10 barber chairs, and 5 sinks to teach people how to twist and braid hair.92 The court examined means and ends and agreed the requirements were senseless.93 Why require sinks, for example, when braiders don’t wash hair, and state law allows braiders to use just hand sanitizer?94 The court refused to accept blindly the state’s purported justifications. It conducted an actual judicial inquiry and observed the state was trying to “shoehorn two unlike professions ‘into a *107 single, identical mold, by treating hair braiders—who perform a very distinct set of services—as if they were [barbers].’ ”95 The court stressed “the logical disconnect inherent in the scheme which contemplates the existence of hair-braiding schools but makes it prohibitively difficult for a hair-braiding school to enter the market.”96 The court concluded the rules lacked any “rational relationship to any legitimate government interest”97 and were thus unconstitutional under the Fourteenth Amendment.98

Tellingly, the state declined to appeal, saying it would instead launch “a comprehensive review of the barber and cosmetology statutes” and “work with [the] legislative oversight committees on proposals to remove unnecessary regulatory burdens for Texas businesses and entrepreneurs.”99 Legislative response was swift—and unanimous—and Governor Abbott 15 days ago signed House Bill 2717 to deregulate hair braiding.100 But as with many matters (e.g., public school finance), it took a judicial ruling on constitutionality to spark legislative action.

The U.S. Supreme Court itself recently examined how states regulate professions, scrutinizing whether licensing boards dominated by industry incumbents are rightly focused on weeding out scammers and inept practitioners or wrongly focused on weeding out newcomers.101 Earlier this year in Parker no longer insulates regulated regulators regulating to anticompetitive effect. Licensing boards comprised of private competitors will face Sherman Act liability if they flex power to smother aspiring entrepreneurs.107

B.

As today’s case shows, the Texas occupational licensure regime, predominantly impeding Texans of modest means, can seem a hodge-podge of disjointed, logic-defying irrationalities, where the burdens imposed seem almost farcical, forcing many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business? Licensure absurdities become apparent when you compare the wildly disparate education/experience burdens visited on various professions. The disconnect between the strictness of some licensing rules and their alleged public-welfare rationale is patently bizarre:

Emergency Medical Technicians. EMTs are entrusted with life-and-death decisions. But in Texas, entry-level EMTs need only 140 hours of training before rendering life-saving aid.108 Contrast that with the radically more onerous education/experience requirements for barbers (300 hours),109 massage therapists (500 hours),110 manicurists (600 hours),111 estheticians (750 hours),112 and full-service cosmetologists (1,500 hours).113

Backflow Prevention Assembly Testers. Of the number of states and the District of Columbia that require licenses for backflow prevention assembly testers, the Lone Star State is the only place where it takes more than two weeks of training/experience—way more. Fifty times more. Not two weeks but two years.114

State licensing impacts our lives from head to toe. Literally. Starting at the *109 top, where does hair end and the beard begin? Texas law has been quite finicky on the matter, leading Texas barbers and cosmetologists to spend years splitting legal hairs and clogging Texas courts. Both of these state-licensed professionals may cut hair, but until 2013 only barbers, not cosmetologists, had state permission to wield a razor blade to shave facial hair. Before 2013, if you wanted your beard shaved, you had to visit a barber (probably a man) and not a cosmetologist (probably a woman).115 And what is a “beard” anyway? Why, it’s the facial hair below the “line of demarcation” as defined in the Administrative Code.116 Even the Attorney General of Texas got all shook up wondering whether Elvis’s famous sideburns “were hair which a cosmetologist might trim, or a partial beard which could be serviced only [by] a barber.”117

At the other bodily extreme, what’s the demarcation between the foot (which podiatrists can treat) and the ankle (which they can’t)? These are high-stakes disputes, and sometimes the licensing bodies have jurisdictional spats with each other, usually over “scope of practice” issues. So where does the foot end and the ankle begin? In 2010, this Court ended a nearly ten-year legal battle between, in one corner, the Texas Medical Association and Texas Orthopedic Association, and in the other, the Texas State Board of Podiatric Medical Examiners and Texas Podiatric Medical Association.118

According to the academic literature, the real-world effects of steroidal regulation are everywhere: increased consumer cost; decreased consumer choice; increased practitioner income; decreased practitioner mobility119—plus shrunken economic prospects for lower income, would-be entrepreneurs.120 Thomas Edison, with little formal schooling, likely could not be a licensed engineer today, nor could Frank Lloyd Wright be a licensed architect.121

*110 III.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.122

Anyone acquainted with human nature understands, as Madison did, that when people, or branches of government, are free to judge their own actions, nothing is prohibited. The Court recognizes that Texans possess a basic liberty under Article I, Section 19 to earn a living. And to safeguard that guarantee, the Court adopts a test allergic to nonsensical government encroachment. I prefer authentic judicial scrutiny to a rubber-stamp exercise that stacks the legal deck in government’s favor.

My views are simply stated:

1. The economic-liberty test under Article I, Section 19 of the Texas Constitution is more searching than the minimalist test under the Fourteenth Amendment to the United States Constitution.

Even under the lenient rational-basis test—“the most deferential of the standards of review”123—the would-be threaders should win this case. It is hard to imagine anything more irrational than forcing people to spend thousands of dollars and hundreds of hours on classes that teach everything they don’t do but nothing they actually do. Not one of the 750 required hours of cosmetology covers eyebrow threading. Government-mandated barriers to employment should actually bear some meaningful relationship to reality.

It is instructive to consider the U.S. Supreme Court’s first occupational licensing case, from 1889. In Schware v. Board of Bar Examiners,129 the only time the Court has struck down a licensing restriction under rational-basis review. In Schware, the Court invalidated New Mexico’s attempt to bar a Communist Party member from practicing law: “any qualification must have a rational connection with the applicant’s fitness or capacity to practice.”130

The federal rational-basis requirement debuted amid Depression-era upheaval in 1934, when the Court in Lee Optical, the Court, while implicitly recognizing a liberty right to pursue one’s chosen occupation, held that economic regulation—here, forbidding opticians from putting old lenses in new frames—would be upheld if the court could conjure out of thin air any hypothetical reason why lawmakers might have enacted the law.135 Uncertainty has persisted for decades, partly because, as the Court acknowledges, “Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate government interest.’ ”136 Some federal circuits, including the Fifth, have held it is improper to regulate solely to insulate incumbent business from competition.137 But with a few notable exceptions, like the *112 recent “casket cartel”138 and African hair-braiding cases,139 rational-basis review under the Fourteenth Amendment is largely a judicial shrug.

Indeed, federal-style scrutiny is quite unscrutinizing, with many burdens acing the rational-basis test while flunking the straight-face test. As the U.S. Supreme Court held almost 80 years ago in United States v. Carolene Products,140 government has no obligation to produce evidence to sustain the rationality of its action; rather, “the existence of facts supporting the legislative judgment is to be presumed.”141 Courts “never require a legislature to articulate its reasons for enacting a statute” and will uphold a law “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.142 Indeed, it is “entirely irrelevant” whether the purported justification for a burdensome law “actually motivated the legislature.”143 Challengers must negate every conceivable basis that might support it,144 and judges are exhorted to invent a colorable justification if the one articulated by the government falls short. All this explains why critics charge the test is less “rational basis” than “rationalize a basis.”

The dissents would subordinate concrete scrutiny to conjectural scrutiny that grants a nigh-irrebuttable presumption of constitutionality. It is elastic review where any conceivable, theoretical, imaginary justification suffices. In my view, Texas judges should instead conduct a genuine search for truth—as they do routinely in countless other constitutional areas—asking “What is government actually up to?” When constitutional rights are imperiled, Texans deserve actual scrutiny of actual assertions with actual evidence.

• Should Texas courts reflexively accept disingenuous or smokescreen explanations for the government’s actions? No.

• Is government allowed to prevail with purely illusory or pretextual justifications for a challenged law? No.

• Must citizens negate even purely hypothetical justifications for the government’s infringement of liberty? No.

• Are Texas courts obliged to jettison their truth-seeking duty of neutrality and help government contrive post hoc justifications? No.

Texas judges should discern whether government is seeking a constitutionally valid end using constitutionally permissible means. And they should do so based on real-world facts and without helping government invent after-the-fact rationalizations. I believe the Texas Constitution requires an earnest search for truth, not the turn-a-blind-eye approach that prevails under the federal Constitution.145

*113 2. The Texas Constitution narrows the difference in judicial protection given to “fundamental” rights (like speech or religion) and so-called “non-fundamental” rights (like the right to earn a living).

The jurisprudential fact of the matter is that courts are more protective of some constitutional guarantees than others. One bedrock feature of 20th-century jurisprudence, starting with the U.S. Supreme Court’s New Deal-era decisions, was to relegate economic rights to a more junior-varsity echelon of constitutional protection than “fundamental” rights. Nothing in the federal or Texas Constitutions requires treating certain rights as “fundamental” and devaluing others as “non-fundamental” and applying different levels of judicial scrutiny, but it is what it is: Economic liberty gets less constitutional protection than other constitutional rights.

This is not opinion but irrefutable, demonstrable fact. Ever since what is universally known as “the most famous footnote in constitutional law”146—footnote four in Slaughter–House). Speech rights get no-nonsense “strict scrutiny” to ensure government is behaving itself while property rights get servile, pro-government treatment.

For example, when courts decide an Establishment Clause challenge under the First Amendment, they normally defer to a State’s asserted secular purpose. But such deference is not blind. Courts don’t simply take government’s word for it; they are careful to ensure that a “statement of such purpose be sincere and not a sham.”149 Same with gender classifications. The Court in 1996 struck down Virginia’s exclusion of women from Virginia Military Institute, explaining that government’s asserted justification must be “genuine,” as opposed to one that’s been “hypothesized or invented post hoc in response to litigation.”150

Digital privacy under the Fourth Amendment is another constitutional area *114 where the U.S. Supreme Court requires real-world evidence rather than putting a pro-government thumb on the scale. Recently, in the landmark case Riley v. California,151 prosecutors, citing concerns for officer safety and preserving evidence, insisted they did not need a warrant before searching an arrested suspect’s smartphone. The Court unanimously rejected the prosecutors’ excuses, making clear that justifications for burdening constitutional rights must be concrete, non-imaginary concerns “based on actual experience.”152 The Court held there was no real and documented evidence that warrantless searches were necessary to protect officers.153 As for evidence destruction, the Court was likewise unmoved, noting again the absence of actual evidence to back the State’s assertion, adding that in any event, law enforcement has “more targeted ways to address those concerns.”154

Some constitutional rights fall somewhere in between, like “commercial speech,” not because the Constitution draws that distinction but because judges do. Commercial speech—advertisements and other business-related speech—is a hybrid under U.S. Supreme Court precedent, involving speech rights (protected vigorously) and economic rights (protected not so vigorously).155 Imagine a law that makes it illegal to advertise Axe Body Spray because lawmakers believe it endangers the public. This law plainly burdens speech, but it burdens economic speech, which receives less judicial protection than, say, political speech.156 Nonetheless, commercial speech restrictions still get meaningful judicial review. Courts would examine three factors: (1) whether government has a “substantial interest” in burdening the speech; (2) whether the restriction actually furthers that interest; and (3) whether there are less restrictive ways to achieve the stated goal so that speech is restricted as little as necessary.157 Government bears the burden of proof, and the law receives a serious judicial pat-down, including whether it was honestly driven by a desire to serve public interests or was merely a pretext to serve private interests. Now imagine a different law, one banning the sale of Axe Body Spray. With this law, the legal deck is shuffled differently, and a judge would apply a less-rigorous test because the law targets not commercial speech but commercial activity, a so-called non-fundamental right. Because this law focuses on economic activity, government wouldn’t have to prove its health claims, or show that less restrictive means were available, or convince a judge that the law’s purported purpose was a pretext to mask its true purpose.158

*115 But “economic” and “noneconomic” rights indisputably overlap. As the U.S. Supreme Court has recognized, freedom of speech would be meaningless if government banned bloggers from owning computers. Economic freedom is indispensable to enjoying other freedoms—for example, buying a Facebook ad to boost your political campaign. A decade (and three days) ago in Kelo v. City of New London,159 the landmark takings case that prompted a massive national backlash,160 Justice Thomas’s dissent lamented the bias against economic rights this way: “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”161

Kelo Court stressed its “longstanding policy of deference to legislative judgments,”162 and its unwillingness to “second-guess”163 the city’s determination as to “what public needs justify the use of the takings power.”164 Justice O’Connor’s scathing dissent, forcefully accused her colleagues of shirking their constitutional duty.165

A few years later in District of Columbia v. Heller,166 which struck down D.C.’s ban on handguns and operable long guns, the Court divided on what measure of deference was appropriate in the Second Amendment context. In dissent, Justice Stevens lauded New Deal-era Justice Frankfurter and accused the Court of aggressive activism, chastising, “adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.”167

*116 I would not have Texas judges condone government’s dreamed-up justifications (or dream up post hoc justifications themselves) for interfering with citizens’ constitutional guarantees. As in other constitutional settings, we should be neutral arbiters, not bend-over-backwards advocates for the government. Texas judges weighing state constitutional challenges should scrutinize government’s actual justifications for a law—what policymakers really had in mind at the time, not something they dreamed up after litigation erupted. And judges should not be obliged to concoct speculative or far-fetched rationalizations to save the government’s case.

3. Texas courts need not turn a blind eye to the self-evident reasons why an increasing number of Texans need a government permission slip to work in their chosen field.

Today’s decision recognizes another key contributor to the irrationalities afflicting occupational licensing: the hard-wired inclination to reduce competition. This metabolic impulse—Human Nature 101—has always existed.

English courts protected the right to earn a living since the early Seventeenth Century, long before the U.S. Constitution was adopted. In 1614, the Court of King’s Bench invalidated a law that required an apprenticeship with the local guild before someone could become an upholsterer, dismissing the cries of licensed upholsterers who warned of inexpert practitioners. Lord Chief Justice Coke, Britain’s highest judicial officer, was unpersuaded, holding “no skill” was required, “for [someone] may well learn this in seven hours.”168 Lord Coke wrote that Magna Carta (now 800 years old) and English common law safeguarded the right of “any man to use any trade thereby to maintain himself and his family.”169 He compared the proponents of barriers, invariably incumbent businesses, to someone rowing a boat: “they look one way and row another: they pretend public profit, intend private.”170 That is, they speak of public welfare (increasing competence) but seek private welfare (decreasing competition). Guilds in England wielded licensing to create “artificial scarcity,” prompting English courts to declare the right to earn a living one of “nationalistic concern for increasing the wealth of the realm.”171 Lord Coke said legal redress, not licensing, was preferred for most occupations, explaining the “possibility that a practitioner might do a bad job was not a good excuse for restricting economic freedom, raising costs to consumers, and depriving entrepreneurs of economic opportunity.”172

Adam Smith echoed Coke a century and a half later in The Wealth of Nations, calling efforts to thwart people from exercising their dexterity and industry as they wish “a plain violation of this most sacred property.”173 Economic freedom was indeed prized in the colonies, which lacked a guild system, but the right was extolled less as a national wealth creator and more as man’s natural birthright. In 1775, Thomas Jefferson previewed a principle he *117 would underscore in the Declaration—the right to pursue happiness174—lamenting British laws that “prohibit us from manufacturing, for our own use, the articles we raise on our own lands, with our own labour.”175 Like what? Colonists were forbidden from making iron tools. Why? To enrich British toolmakers. Colonists were forbidden from making their own hats from the fur of American animals. Why? To enrich British hatmakers. Adam Smith, who considered economic choice “the most sacred and inviolable of rights,” likewise observed the tendency of trades to raise wages by reducing the supply of skilled craftsmen.176

What is past is indeed prologue.177 Fast forward almost 250 years, and a prized taxi medallion in New York City now costs $1.25 million, quadruple the price of just a decade ago.178 But the unalienable right to pursue happiness is not merely the right to possess things or to participate in activities we enjoy; it necessarily includes the right to improve our lot in life through industry and ingenuity.

A raft of modern research by Nobel Prize-winning economist Gary Becker and various social scientists confirms that practitioners desire to stifle would-be competitors.179 In 2013, the Texas House Committee on Government Efficiency and Reform found this anticompetitive impulse alive and well in Texas, where licensure affords “clear advantages to members of the licensed profession, such as reduced competition and increased earnings.”180 The Committee observed that stiffer occupational regulations rarely originate with consumer and consumer advocacy groups; rather, they are pushed by entrenched industry members to secure “less competition, improved job security, and greater profitability.”181 The Committee, recognizing the myriad harms of occupational overregulation—measured in damage to “job growth and consumer choice”182—and fearing that Texas was headed towards “more, large-scale occupational licensing programs,”183 made this recommendation: “The Legislature should implement a process to review proposals to regulate new occupations, as well as existing licensing programs, based on real and documented harm to the public.”184

The Legislature responded by passing House Bill 86, which creates a mechanism to critically examine whether existing occupational regulations are still needed, and *118 to phase out those deemed unnecessary. Specifically, the new law requires the Sunset Advisory Commission, in assessing “an agency that licenses an occupation or profession,” to probe whether, and how, existing occupational regulations actually serve the public interest.185 The new law also allows a legislator to submit to the Commission for review and analysis any proposed legislation that would create a new or significantly modify an existing occupational licensing program.186

Courts need not be oblivious to the iron political and economic truth that the regulatory environment is littered with rent-seeking by special-interest factions who crave the exclusive, state-protected right to pursue their careers. Again, smart regulations are indispensable, but nonsensical regulations inflict multiple burdens—on consumers (who pay more for goods and services, or try to do the work themselves),187 on would-be entrepreneurs (who find market entry formidable, if not impossible), on lower-income workers (who can’t break into entry-level trades), and on the wider public (who endure crimped economic growth while enjoying no tangible benefit whatsoever).188

IV.

In Europe, charters of liberty have been granted by power. America has set the example ... of charters of power granted by liberty.189

The Founders pledged their lives, fortunes, and sacred honors to birth a new *119 type of nation—one with a radical design: three separate, co-equal, and competing branches. Three rival branches deriving power from three unrivaled words: “We the People.” Both the Texas and federal Constitutions presume the branches will be structural adversaries—that legislators, for example, will jealously guard their lawmaking prerogative if the executive begins aggrandizing power. Indeed, inter-branch political competition is a precondition to advancing inter-firm economic competition—that is, the judicial branch asserting judicial power to ensure that the political branches don’t arbitrarily insulate established practitioners from newcomers.

Madison, lead architect of the U.S. Constitution, saw his bedrock constitutional mission as ensuring that America does not “convert a limited into an unlimited Govt.”190 Enlightenment philosopher Montesquieu likewise warned of power concentrated: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”191 Madison paid homage to “the celebrated Montesquieu” in Federalist 10, which gave voice to Madison’s gravest worry: the risk of runaway majorities trampling individual liberty.192 Madison turned 85 on the day delegates adopted the Constitution of the Republic of Texas. “He lived barely 100 days more, just long enough to see Texas free.”193 And just like Madison’s handiwork, the Texas Constitution—then and today—exists to secure liberty.

A.

As mentioned earlier, the term “judicial activism” is a legal Rorschach test. I oppose judicial activism, inventing rights not rooted in the law. But the opposite extreme, judicial passivism, is corrosive, too—judges who, while not activist, are not active in preserving the liberties, and the limits, our Framers actually enshrined. The Texas Constitution is irrefutably framed in proscription, imposing unsubtle and unmistakable limits on government power. It models the federal Constitution in a fundamental way: dividing government power so that each branch checks and balances the others. But as we recently observed, “the Texas Constitution takes Madison a step further by including, unlike the federal Constitution, an explicit Separation of Powers provision to curb overreaching and to spur rival branches to guard their prerogatives.”194 The Texas Constitution constrains government power in another distinctive way: It lacks a Necessary and Proper Clause, often invoked to expand Congress’s powers beyond those specifically enumerated.195 Moreover, as noted above, it contains a Privileges or Immunities Clause that, unlike the federal version, has never been judicially nullified.196

*120 As judges, we have no business second-guessing policy choices, but when the Constitution is at stake, it is not impolite to say “no” to government. Liberties for “We the People” necessarily mean limits on “We the Government.” That’s the very reason constitutions are written: to stop government abuses, not to ratify them. Our supreme duty to our dual constitutions and to their shared purpose—to “secure the Blessings of Liberty”197—requires us to check constitutionally verboten actions, not rubber-stamp them under the banner of majoritarianism. For people to live their lives as they see fit, a government of limited powers must exercise that power not with force but with reason. And an independent judiciary must judge government actions, not merely rationalize them. Judicial restraint doesn’t require courts to ignore the nonrestraint of the other branches, not when their actions imperil the constitutional liberties of people increasingly hamstrung in their enjoyment of “Life, Liberty and the pursuit of Happiness.”198

The power to “protect the public” is a heady and fearsome one.199 Government is charged with promoting the general welfare, but it must always act within constitutional constraints. Our two constitutions exist to advance two purposes: individual liberty through limited government. Our federal and state Founders saw liberty as America’s natural, foundational value, and our rights as too numerous to be exhaustively listed. Liberty both justifies government (to erect basic civic guardrails) and limits government (to minimize abridgements on human freedom). In other words, our dual constitutional charters exist not to exalt majority rule but to protect prepolitical rights that limit majority rule. Majoritarianism cannot be permitted to invert our bottom-line constitutional premise. The might of the majority, whatever the vote count, cannot trample individuals’ rights recognized in both our federal and state Constitutions, not to mention in our nation’s first law, the Declaration.200

B.

Our State Constitution, like Madison’s Federal handiwork, is infused with Newtonian genius: three rival branches locked in synchronous orbit by competing interests—ambition checking ambition.201

*121 Isaac Newton died in 1727, before James Madison, the Father of the U.S. Constitution, was even born, but our Founders, both state and federal, understood political physics: “power seized by one branch necessarily means power ceded by another.”202 Newton’s Third Law of Motion, while a physical law, also operates as a political law. When one branch of government exerts a force, there occurs an equal and opposite counterforce. The Laws of Constitutional Motion require these rival branches to stay within their sphere, flexing competing forces so that power is neither seized nor ceded.

Our Framers understood that government was inclined to advance its own interests, even to the point of ham-fisted bullying, which is precisely why the Constitution was written—to keep government on a leash, not We the People. But individual liberty pays the price when our ingenious system of checks and balances sputters, including when the judiciary subordinates liberty to the congeries of group interests that dictate majoritarian outcomes. Daily and undeniably, there exist government incursions that siphon what Thomas Jefferson called our “due degree of liberty”203—“siphoning that often occurs subtly, with such drop-by-drop gentleness as to be imperceptible.”204

Police power is undoubtedly an attribute of state sovereignty, but sovereignty ultimately resides in “the people of the State of Texas.”205 The Texas Constitution limits government encroachments, and does so on purpose. “Our Bill of Rights is not mere hortatory fluff; it is a purposeful check on government power.”206 And everyday Texans, and the courts that serve them, must remain vigilant. Government will always insist it is acting for the public’s greater good, but as Justice Brandeis warned in his now-celebrated Olmstead dissent: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.”207

Before solving a problem, you must first define it. The Lone Star State boasts a spirit of daring and rugged independence, virtues essential to personal and economic *122 dynamism, but bureaucratic headwinds imperil that vitality. Almost two centuries ago, around the time of Texas independence, Alexis de Tocqueville, a keen observer of early America, warned of “soft despotism” wrought by government that “covers the surface of society with a network of small complicated rules” that “even the most original and energetic characters cannot penetrate.”208 Tocqueville’s warnings for 1835 America apply equally to 2015 Texas, where “administrative despotism,” though doubtless well meaning, inflicts a real-world toll on honest, hardworking Texans:

The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which government is the shepherd.209

Government’s conception of its own power as limitless is hard-wired. But under the Texas Constitution, government may only pursue constitutionally permissible ends. Naked economic protectionism, strangling hopes and dreams with bureaucratic red tape, is not one of them. And such barriers, often stemming from interest-group politics, are often insurmountable for Texans on the lower rungs of the economic ladder (who unsurprisingly lack political power)—not to mention the harm inflicted on consumers deprived of the fruits of industrious entrepreneurs. Irrational licensing laws oppress hard-working Texans of modest means, men and women struggling to do what Texans of all generations have done: to better their families through honest enterprise.210

V.

[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.211

Governments are “instituted among Men” to “secure” preexisting, “unalienable Rights.”212 Our federal and Texas Constitutions are charters of liberty, not wellsprings of boundless government power. Madison adroitly divided political power because he prized a “We the People” system that extolled citizens over a monarchical system of rulers and subjects. The trick was to give government its requisite powers while structurally hemming in that power so that fallible men wouldn’t become as despotic as the hereditary monarchs they had fled and fought.

Economic liberty is “deeply rooted in this Nation’s history and tradition,”213 and the right to engage in productive enterprise is as central to individual freedom as *123 the right to worship as one chooses. Indeed, Madison declared that “protection” of citizens’ “faculties of acquiring property” is the “first object of government,”214 and admonished that a government whose “arbitrary restrictions” deny citizens “free use of their faculties, and free choice of their occupations” was “not a just government.”215 When it comes to occupational licensing—often less about protecting the public than about bestowing special privileges on political favorites—government power has expanded unchecked. But government doesn’t get to determine the reach of its own power, something that subverts the original constitutional design of limited government. The Texas Constitution imposes limits, and imposes them intentionally.216 Bottom line: Police power cannot go unpoliced.

I believe judicial passivity is incompatible with individual liberty and constitutionally limited government. Occupational freedom, the right to earn a living as one chooses, is a nontrivial constitutional right entitled to nontrivial judicial protection. People are owed liberty by virtue of their very humanity—“endowed by their Creator,” as the Declaration affirms.217 And while government has undeniable authority to regulate economic activities to protect the public against fraud and danger, freedom should be the general rule, and restraint the exception.

The Founders understood that a “limited Constitution” can be preserved “no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”218 Judicial duty—“so arduous a duty,” Hamilton called it—requires courts to be “bulwarks of a limited Constitution against legislative encroachments,”219 including holding irrational anticompetitive actions unconstitutional. Such is life in a constitutional republic, which exalts constitutionalism over majoritarianism precisely in order to tell government “no.” That’s the paramount point, to tap the brakes rather than punch the gas.

The Court today rejects servility in the economic-liberty realm, fortifying protections for Texans seeking what Texans have always sought: a better life for themselves and their families. There remains, as Davy Crockett excitedly wrote his children, “a world of country to settle.”220

Justice Boyd, concurring in judgment.

I concur in the Court’s judgment but do not fully agree with its reasoning. Specifically, I do not agree with the Court’s *124 adoption of a new alternative test under which the Texas Constitution’s “due course of law” provision invalidates any law that is “so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.” Ante at 87. Nevertheless, I conclude that the Texas statute requiring the petitioners—who merely remove superfluous hair using tweezing techniques—to obtain an esthetician’s license is arbitrary and unreasonable, and therefore oppressive, because it has no rational relationship to a legitimate government interest.

The Texas Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 632 (Tex.1996). The issue here is whether requiring the petitioners to obtain an esthetician’s license as a condition for practicing their trade of eyebrow threading violates their substantive rights to liberty, property, privileges, or immunities without due course of law.

As the Court notes, this Court has “not been entirely consistent” in its articulation of the standard by which we review the constitutionality of economic regulations under the due course of law provision. Ante at 80. Through the years, for example, we have variously said that laws are presumed to be constitutional and a law is invalid only if:

• it is “unreasonable and in contravention of common right,” Milliken v. City Council of Weatherford, 54 Tex. 388, 394 (1881);

• it invades rights “without justifying occasion, or in an unreasonable, arbitrary, and oppressive way,” Hous. & Tex. Cent. Ry. Co. v. City of Dall., 84 S.W. 648, 653 (Tex.1905);

• it is not “sufficiently rational and reasonable,” Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 525 (Tex.1995);

• it has “no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense,” Nectow v. City of Cambridge, 277 U.S. 183, 187–88, 48 S.Ct. 447, 72 L.Ed. 842 (1928));

• it is not “designed to accomplish an objective within the government’s police power and [no] rational relationship exists between the ordinance and its purpose,” id.;

• the “enacting body could [not] have rationally believed at the time of enactment that the ordinance would promote its objective,” id.;

• it is not “at least fairly debatable that the [Legislature’s] decision was rationally related to legitimate government interests,” id.; or

• it is “clearly arbitrary and unreasonable,” id.

These precedents illustrate the difficulty the Court has had articulating the appropriate standard. I would read our prior descriptions together, to provide that a law violates the substantive due course of law provision only if it is arbitrary and unreasonable, and therefore oppressive, because it has no rational relationship to a legitimate government interest. The Court, by contrast, holds that a law is invalid if its “purpose could not arguably be rationally related to a legitimate governmental interest” or “when considered as a whole, [its] *125 actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.” Ante at 87 (emphasis added). In other words, the Court holds that a law is invalid if it is “burdensome” and “oppressive in light of” the legitimate governmental interest, even if it is rationally related to that interest. As the CHIEF JUSTICE notes in his dissent, “[n]either this Court nor any other the Court can find has ever used ‘oppressive’ as a test for substantive due process.” Post at 126; see Hous. & Tex. Cent. Ry. Co., 84 S.W. at 653 (holding Constitution prohibits laws that invade substantive rights “without justifying occasion, or in an unreasonable, arbitrary, and oppressive way,” not “or oppressive way”).

I agree that the Court’s new burdensome/oppressive standard is “loose”—too “loose,” in fact, to be useful in our analysis of these types of constitutional challenges. See post at 135 (Hecht, C.J., dissenting). Determining what “burdensome” or “oppressive” means in this context will be nigh impossible, unless we use those terms, as we have in our prior opinions, to refer to the burdens that result from a law that is not rationally related to a legitimate government interest. Like JUSTICE GUZMAN, “I have significant doubts that this standard is workable in practice.” Post at 142. And like both dissenting Justices, I believe the burdensome/oppressive standard makes it too easy for courts to invalidate regulations for their own personal policy reasons. See post at 135 (Hecht, C.J., dissenting); post at 141 (Guzman, J., dissenting). Because, as JUSTICE GUZMAN notes, courts cannot and should not “legislate from the bench,” post at 140, the bar should be set very high, to ensure that it is indeed the Constitution, and not merely a court, that invalidates a law.

But the bar cannot be insurmountable, and if the application of any regulatory licensing scheme were ever constitutionally invalid, this one is. I need not repeat my colleagues’ descriptions, because everyone (including the State and both dissenting Justices) agrees that requiring eyebrow threaders to complete the current requirements necessary to obtain an esthetician’s license “is obviously too much.” Post at 131 (Hecht, C.J., dissenting); post at 142–43 (Guzman, J., dissenting). Certainly, “[i]f there is room for a fair difference of opinion as to the necessity and reasonableness of a legislative enactment on a subject which lies within the domain of the police power, the courts will not hold it void.” State v. Richards, 301 S.W.2d 597, 602 (1957). But there is no difference of opinion here: requiring eyebrow threaders to obtain an esthetician’s license is neither necessary nor reasonable. Requiring them to obtain training in sanitation and safety is rational, but requiring them to get an esthetician’s license is not.

The CHIEF JUSTICE suggests that “there is ... evidence from which the Legislature could reasonably conclude that the required instruction and testing would further its goal of protecting public health and safety through the regulation of cosmetology.” Post at 140. I agree that protecting public health and safety is a legitimate government interest, but I do not agree that requiring eyebrow threaders to meet the current requirements for obtaining an esthetician’s license is rationally related to achieving that interest. Under the dissenting Justices’ approach, if the Legislature decided to require eyebrow threaders to obtain a medical license, we would have to uphold that decision because that licensing scheme also “instruct[s] in general sanitation and safety practices.” Post at 140 (Hecht, C.J., dissenting).

*126 It may be convenient to impose the existing esthetician licensing scheme on eyebrow threaders, but in my view it is also arbitrary and unreasonable, and therefore oppressive, because doing so is not rationally related to the legitimate government interest in promoting public health and safety. Courts should not second-guess the Legislature, but in the end, as the CHIEF JUSTICE agrees, “the final authority to interpret and apply the Constitution belongs to the Judiciary[.]” Post at 126. Although that authority is “not lightly to be exercised,” post at 126 (Hecht, C.J., dissenting), the Court is right to exercise it here.

I therefore concur in the judgment.

Chief Justice Brown, dissenting.

This is one of those cases in which, once the Court has decided whom it wants to win, the less said the better. Result is an inapt tool for shaping principle; it’s supposed to work the other way around. And when principle ends up being mutilated, it can no longer be used to guide other results. Since it turns out that the Court thinks substantive due process means whatever judges say it means, it would be best to leave bad enough alone rather than pretend the idea has any support in the Constitution’s text or history. The Court runs the risk that what passes for constitutional analysis around here will be seen as just picking words out of the air.

The Threaders deserve to have the yoke of the regulatory state thrown off, the shackles on their free enterprise shattered, in short—although brevity is not the hallmark of some of today’s writings—to stick it to the man. And what better way to do all that than by having judges hold the State’s 80–year–old cosmetology licensing scheme, also found in ten other states, unconstitutional as applied to eyebrow threading. The trouble is, this Court, like the United States Supreme Court, has repeatedly held that a statute with a rational basis does not violate substantive due process, and applying that standard here will not help the Threaders. Casting about, the Court comes up with “oppressive”, a brand-new entrant in the substantive due process lexicon. Neither this Court nor any other the Court can find has ever used “oppressive” as a test for substantive due process. Which is great because the Court is now free—as free as the grateful Threaders from public health and safety regulation—to make up substantive due process from scratch.

Whether eyebrow threaders need 750 hours’ training, or only 430, or 40, or 1, to practice their trade on the public is not for us to say, as long as the Legislature, whose job it is to say, is making a rational effort to protect public health and safety. As the Court acknowledges at one point, “it is not for courts to second-guess [legislative and agency] decisions as to the necessity for and the extent of training that should be required for different types of commercial service providers.”1 The question for us is whether, by requiring 750 hours’ training, the Legislature has violated substantive due process by depriving eyebrow threaders of their fundamental liberty without the due course of law guaranteed by the Texas Constitution.

Because the final authority to interpret and apply the Constitution belongs to the Judiciary, only the people themselves, by constitutional amendment, can alter the Court’s substantive due process decisions. The Judiciary’s authority is enormous and not lightly to be exercised. Justice Powell once observed that “[t]he history of substantive *127 due process counsels caution and restraint.”2 The history to which he referred was the Supreme Court’s own adventure with substantive due process beginning with Lochner and its progeny, invents a new test unprecedented in American jurisprudence, and ushers in a new era of government by judges.

The Court, and JUSTICE WILLETT’S concurring opinion in its wild championing of economic liberty, seem oblivious to the reality that social liberty is no less important. The same substantive due process that can free eyebrow threaders from onerous training requirements can also be used to establish a right of privacy not otherwise to be found in the Constitution.6 Are restrictions on abortion “oppressive”? How about restrictions on marriage? Unconstrained by any meaningful standard, substantive due process allows judges to define liberty according to their personal policy preferences. History and reason warn that the Court has gone too far.

I respectfully dissent.

I

The Legislature has regulated cosmetic services for 80 years. The original impetus was concern for public health and safety. “[T]he public,” the Legislature found in the Cosmetology Act of 1935, “is daily exposed to disease due to insufficient care as to sanitation and hygiene [and should be protected by the Act] from inexperienced and unscrupulous beauty parlors and beauty culture schools”.7 Protection of the public health and welfare remains the driving *128 force for regulating cosmetology.8 Beauty schools, salons, and practitioners are subject to “sanitation rules to prevent the spread of an infectious or contagious disease”,9 inspections to ensure compliance,10 and investigation of public complaints.11 The 1935 Act made it unlawful to practice, provide, or teach cosmetology—broadly defined to include any practice for beautifying the upper body12—without a license.13 Applicants were required to complete 1,000 hours of training at a licensed school of beauty culture and pass an examination.14

In 1971, the Legislature rewrote the Act. An expanded definition of cosmetology specifically included “removing superfluous hair from the body by use of depilatories15 or tweezers”.16 The revised Act was more discriminating, creating five classes of licenses with different restrictions on the activities in which a holder could engage.17 Training requirements ranged from 1,500 hours down to 150 hours,18 and applicants had to pass written and practical examinations.19 Since then, the Legislature has repeatedly adjusted the kinds of licenses and the training requirements for each.20 There are now six classes of licenses with required training ranging from 1,500 hours to 320 hours.21

*129 In 2005, the Legislature assigned the regulation of cosmetology to the Texas Department of Licensing and Regulation (“the Department”),22 “the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature.”23 The Department is managed by an executive director24 and governed by the Texas Commission of Licensing and Regulation (“the Commission”).25 The Commission is comprised of seven members appointed by the Governor and confirmed by the Senate,26 each of whom must be “a representative of the general public.”27 The Commission soon became aware of the practice of eyebrow threading, and in 2008 it began to insist that threading be included in the regulatory scheme like other forms of hair removal. In a 2011 case, the court of appeals was skeptical of the Department’s position,28 but after the decision issued, the Legislature amended the definition of cosmetology to include “removing superfluous hair from a person’s body using depilatories, preparations, or tweezing techniques”.29 The Department then amended its regulations to define “tweezing techniques” as “the extraction of hair from the hair follicle by use of ... an instrument, appliance or implement ... made of ... thread or other material.”30

The Department requires an esthetician specialty license for threading.31 The license covers various skin care treatments such as facials and cleansing, “beautifying a person’s face, neck, or arms” with preparations or other products, and removing superfluous hair from the skin.32 An applicant for an esthetician specialty license must complete 750 hours of instruction in a *130 licensed beauty culture school,33 half the hours required for an “operator license” allowing the performance of “any practice of cosmetology.”34 The instruction for an esthetician specialty license covers the following subjects35:

orientation, rules and laws...50 hours

sanitation, safety, and first aid...40 hours

anatomy and physiology...90 hours

facial treatment, cleansing, masking, therapy...225 hours

superfluous hair removal...25 hours

electricity, machines, and related equipment...75 hours

makeup...75 hours

chemistry...50 hours

care of client...50 hours

management...35 hours

aroma therapy...15 hours

nutrition...10 hours

color psychology...10 hours

Depending on the school, the training can take from nine to sixteen months and cost anywhere from $3,500 for a public junior college to $22,000 for a private school. Threading is not a required part of the curriculum, which generally covers “superfluous hair removal”, and only a handful of schools offer instruction in threading. Health, safety, and sanitation issues are covered as part of the first five subjects listed above; these subjects account for 430 of the prerequisite hours.

An applicant must also pass a written and a practical examination.36 The examinations test on safety, sanitation, and disinfectant criteria as well as the ability to perform various services. Hair removal is part of the practical exam, though threading is not, but an applicant may use threading to demonstrate her hair-removal ability.37

Cosmetology regulations require eyebrow threaders, like other cosmetologists, to wash their hands or use a liquid hand sanitizer before performing any services on a customer; dispose of all single-use items that have come in contact with the client’s skin; store thread in sealed bags or covered containers and in a clean, dry, and debris-free storage area; and clean, disinfect, and sterilize or sanitize all multi-use items prior to each service.38 Regulations further require cosmetologists and estheticians to clean the client’s skin before performing hair removal services.39 Special precautions must be taken with items such as creams, astringents, lotions, and other preparations, which are subject to possible cross-contamination.40 Single-use items used to apply these products—such as tissue, cotton pads, or cotton balls—must be discarded in a trash receptacle *131 that is emptied daily and kept clean by washing or using plastic liners.41 Facial chairs, beds, and headrests must be cleaned and disinfected before service is provided to a client.42 Regulations also provide specific procedures to follow whenever a cosmetology service causes bleeding.43

The Threaders acknowledge that threading poses health risks. In the trial court, they offered evidence from a physician, Dr. Patel (no relation to Petitioner Ashish Patel), that removing a hair from its follicle opens a portal through which bacteria or a virus can permeate the skin. Dr. Patel opined that threading may lead to “redness, swelling, itching, inflammation of the hair follicles, discoloration, and ... superficial bacterial and viral infections.” She testified that threading could cause the spread of infections such as impetigo, and methicillin-resistant staphylococcus aureus (often called a “staph infection”). She opined that a threader’s failure to use appropriate sanitation practices—such as using disposable materials properly, cleaning the work station, using effective hand-washing techniques, and correctly treating skin irritations and abrasions—can expose threading clients to infection and disease. She also testified that these health risks can be fully addressed by giving threaders one hour’s training in sanitation and hygiene.

The Threaders allege that, as applied to them, the cosmetology licensing scheme violates substantive due process—that is, that it deprives them of economic liberty without due course of law in violation of Article I, Section 19 of the Texas Constitution. The Threaders assert that Texas’ regulation of cosmetology “places senseless burdens on eyebrow threaders and threading businesses without any actual benefit to public health and safety.” But the Threaders acknowledge that Texas’ longstanding regulation of cosmetology, including superfluous hair removal, is needed to protect the public health. They argue only that it is excessive.

II

On our record, Texas’ regulation of threading seems excessive and misguided as a matter of policy, though I hasten to add, nothing of what prompted the regulation is before us. We have conducted no investigations and held no hearings. As in any case, we know what the parties have told us, and nothing more. This distinguishes the Judiciary from the Legislature. We are ill-equipped to set policy because we have no way of summoning the various interests for input or exploring all considerations. But on this record, threading regulation is obviously too much.

Is it also unconstitutional? Federal and Texas constitutional protections of due process are closely related. The Fifth Amendment to the United States Constitution, adopted by Congress in 1789 and ratified by the states two years later, provides that no person shall “be deprived of life, liberty, or property, without due process of law”.44 The Fourteenth Amendment, ratified in 1868, prohibits the states from violating the same guarantee.45 In between, in 1845, the first Constitution for the State of Texas provided that “[n]o citizen of this State shall be deprived of life, liberty, [or] property ... except by *132 due course of the law of the land.”46 The provision is now Article I, Section 19 of the Texas Constitution.

A

This Court has recognized that Texas’ due course of law guarantee protects both procedural and substantive rights.47 But we have been mindful that applying substantive due process doctrine to economic regulation has never met with recognized success. The United States Supreme Court has vacillated in its view of the scope of federal due process protection. In Lochner v. New York, the Supreme Court famously took a broad view, holding that New York’s regulation of bakers’ working hours violated the Fourteenth Amendment.48 Finding an implicit right of contract in the United States Constitution, the Supreme Court concluded that whether the state regulation deprived bakers of this right depends on whether it is:

a fair, reasonable, and appropriate exercise of the police power of the state, or [rather] an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family[.]49

Justice Oliver Wendell Holmes dissented, warning:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law[.] It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples.... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.50

Subsequent cases proved true Holmes’ warning that a mere reasonableness standard for substantive due process was unworkable and that judges cannot practically or legally constitutionalize economic theory.51 Lochner’s substantive due process adventure soon ended.

*133 Thirty-three years later, the Supreme Court recanted Lochner, stating matter-of-factly, as if it should always have been obvious:

regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis....52

This requirement that economic regulation need only bear a rational relationship to a legitimate state interest is far more deferential to state legislatures than Lochner era, Justice Douglas wrote for the Supreme Court:

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.... For protection against abuses by legislatures the people must resort to the polls, not to the courts.53

B

The United States Constitution does not, of course, prohibit the states from experimenting with substantive due process based in their own constitutions,54 and Texas has done a bit of that. Twenty years ago we summarized the case law thusly:

Texas courts have not been consistent in articulating a standard of review under the due course clause. Our courts have sometimes indicated that section 19 provides an identical guarantee to its federal due process counterpart. Under federal due process, a law that does not affect fundamental rights or interests—such as the economic legislation at issue here—is valid if it merely bears a rational relationship to a legitimate state interest. *134 On other occasions, however, our Court has attempted to articulate our own independent due course standard, which some courts have characterized as more rigorous than the federal standard.55

But, in the decades since the federal courts adopted the rational basis test, we have not wandered far from that standard. Even in State v. Richards—the case relied on principally by the Threaders to support heightened scrutiny of economic regulation—the Court’s reasoning and result were deferential to the legislation at issue. We concluded that a provision authorizing forfeiture of a vehicle that had been used in furtherance of a crime without the owner’s knowledge did not contravene the Texas Constitution.56 We explained:

A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. If there is room for a fair difference of opinion as to the necessity and reasonableness of a legislative enactment on a subject which lies within the domain of the police power, the courts will not hold it void.57

Though we did not refer to the federal rational basis test, our analysis was consistent with it.

For the past 20 years, we have consistently adhered to the rational basis test. In Mayhew v. Town of Sunnyvale, we upheld a zoning ordinance, explaining:

A generally applicable zoning ordinance will survive a substantive due process challenge if it is designed to accomplish an objective within the government’s police power and if a rational relationship exists between the ordinance and its purpose. This deferential inquiry does not focus on the ultimate effectiveness of the ordinance, but on whether the enacting body could have rationally believed at the time of enactment that the ordinance would promote its objective. If it is at least fairly debatable that the decision was rationally related to legitimate government interests, the decision must be upheld. The ordinance will violate substantive due process only if it is clearly arbitrary and unreasonable.61

Under our precedent, a clearly arbitrary and unreasonable regulation is one that has no rational relationship to its purpose in furthering a legitimate state interest.

*135 The Court instead opts to concoct an entirely new standard from the differing terminology used in our precedents. To avoid violating substantive due process, a statute must not be “clearly arbitrary and unreasonable”, must be sufficiently “rational and reasonable”, must “strike [ ] a fair balance” between the legislative purpose and individual rights, must be “justified”, and must not be “oppressive” or “in contravention of common right”.62 Put all these words in a blender and out pours the correct standard: a statute must not be “so unreasonably burdensome that it becomes oppressive”. Reasonable burdensomeness is okay. And I think the Court really means unduly oppressive, as distinguished from the oppressiveness of the government in general. The analysis would be laughable if the consequences were not so serious.63 One cannot distill a single test from common elements of the rational basis and “fair balance” standards; one must choose between them. Instead, the Court breeds a strict, deferential standard with a loose, non-deferential one, and the resulting misbegot is ... loose and non-deferential.

While substantive due process has been the subject of many cases and much study since Lochner, the Court cannot find a Texas case, a case from an American jurisdiction, or a scholarly treatise or article to cite in support of its “oppressive” test.64 The obvious reason is that it is no standard at all. Oppression is very much in the eye of the beholder. In this case, the Court takes into account the amount, cost, and apparent usefulness of the required training, a threader’s lost income-earning opportunity, and the danger to public health and safety. I suppose the Court would agree that it should also take into account the number and severity of incidents of harm due to poor training and the benefit to threaders and the public. This process is what is generally referred to as legislating. It should be done. It should not be done by judges.

The Court’s answer is that a rational basis standard is no better because if, as in the present case, the State could rationally require some training, the State could require an unlimited amount of training.65 The argument is nonsense. That some training is rational does not mean that more is. There are no bright lines for setting a permissible training requirement under either test. The difference is that the rational basis standard invokes objective reason as its measure, while the “oppressive” test is nothing more than an appeal to a judge’s predilections.

*136 The subjectiveness of the Court’s new test is clear from its response to the fact that Texas is not the only state that has concluded threading should be regulated as part of the practice of cosmetology or esthetics. Eight other states explicitly regulate threading in this way: Delaware, Hawaii, Illinois, Iowa, Louisiana, Mississippi, Oklahoma, and West Virginia.66 Two others define cosmetology to encompass any type of superfluous hair removal.67 These states each require aspiring cosmetologists and estheticians to complete hours of coursework in numbers similar to those required in Texas.68 This is strong evidence that Texas’ regulatory framework has a rational basis; it is common to many states. The Court’s response is “so what”. The reasoned judgment of multiple state legislatures is irrelevant to the Court because whether the training requirements are excessive and oppressive depends on what Texas judges think. The Court’s “oppressive” test is pure judicial policy.

As long as judicial policy is made in the name of substantive due process, the Court argues, it is judging, not legislating. *137 But the Court cannot, simply by invoking a constitutional doctrine, mask the true policy-making character of its ruling. One could take the Court’s analysis of the costs and benefits of regulating eyebrow threaders and offer it in evidence at a legislative hearing, only there would also be evidence relating to the needs of the public and the cosmetology industry generally, evidence that the Court does not have and cannot weigh. The substantive due process doctrine empowers the Judiciary to check regulation that is a clearly arbitrary deprivation of economic liberty in violation of due course of law. The rational basis test for making this determination is not a disclaimer of judicial responsibility but a legal and practical recognition that “[t]he wisdom or expediency of the law is the Legislature’s prerogative, not ours.”69

III

That the Court has gone where no one has gone before is proudly declared by JUSTICE WILLETT’S concurring opinion. Gone are the constraints of the rational basis standard, a standard dismissed as a “rubber stamp” and a “judicial shrug”. JUSTICE WILLETT’S rhetorical torrent against economic regulation carries along its ultimate demand: Texas judges must conduct an investigation “asking” what the “government [is] actually up to”, weighing “what policymakers really had in mind at the time,” “scrutin[izing]” “actual assertions with actual evidence.”70 All this Sturm und Drang announces a new day. And to be sure, all this “asking” and “scrutiniz[ing]” is not judicial activism. It is merely judicial un-passivism.

I agree with JUSTICE WILLETT about one thing: “[t]his case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread.”71 It is about a dramatic arrogation of power by the Court. Economic regulation is invalid whenever a majority of this Court feels it is oppressive.

Hair stylists could make the same argument the Threaders do: why should they be required to have instruction and examination in facial treatment, manicuring, massage, and the removal of unwanted hair? Whether to create various licensing classification schemes, and which practices to include within each, have been questions central to cosmetology regulation since 1971. It is the kind of line-drawing that the Legislature and the Department, not courts, are equipped to do. More importantly, the Constitution gives this line-drawing power—this policymaking—to the Legislature and the Executive, not to the Judiciary.

The same issue applies to other occupational regulation. There is an ongoing debate regarding whether law school should have a third year, whether students should be allowed to sit for the bar exam earlier, and whether a lawyer should be allowed to obtain a special, limited-practice license with less instruction. Further, students intent on pursuing a particular area of practice—tax law, for example—question why they should be required to take other courses, including those, like civil procedure, thought to be part of a fundamental first-year curriculum. Medical education is similarly questioned. Why should students intent on confining their practice to particular areas or specialities be required to take unrelated courses? The answer is often that subjects unrelated to a particular *138 field of practice are nevertheless part of the background information important to the discipline. But even when this rationale is lacking, substantive due process is not violated merely because medical education is not tailor-made for each student. Our inquiry is whether the cosmetology licensing scheme is unconstitutional, not whether we think the lines chosen by the Legislature are well-placed as a matter of policy.

And while Roe v. Wade.75 JUSTICE WILLETT applauds the Court for “narrow[ing] the difference” between fundamental rights—a varsity team (to use his metaphor) that includes not only rights protected by the First Amendment, but also privacy-based liberty interests discovered solely in the due process clause itself—and the economic interests asserted here. JUSTICE WILLETT’S concurring opinion fills the Court’s sails and sets a Lochner-ian course.

IV

I would apply the test established by our precedent: regulation is unconstitutional only if it lacks a rational relationship to a legitimate government interest.76 The *139 parties’ evidence, the State’s purpose in its regulatory scheme, and the effects of that regulation are all to be considered.77 But our precedent makes clear that judges are not to weigh the evidence to determine whether the State’s purpose and approach are reasonable or whether they will be successful; the role of judges is instead to decide whether, in light of the evidence presented, the enacting body “could have rationally ... decided that the measure might achieve the objective.”78 Unlike the Court’s “oppressive” test, this inquiry is objective, looking not to whether the governmental body subjectively believed the purpose would be accomplished, but to whether a reasonable governmental body could have so believed in light of the evidence. It is not for the Judiciary to correct a mere error in judgment by the policymaking branches.

The Threaders do not dispute that, in general, Texas’ long-standing regulation of cosmetology is rationally related to the State’s legitimate interest in protecting public health and safety.79 The Threaders argue only that the regulation as applied to eyebrow threading—specifically, the training and testing required for licensure—is so excessive as to deprive them of their liberty in choosing an occupation. The State does not dispute that as many as 320 of the required 750 hours are not useful to eyebrow threaders,80 but it argues that the requirements are not clearly arbitrary, as they must be to violate substantive due process under the correct test.

The health risks of commercial hair removal cannot be minimized. Dr. Patel, the expert offered by the Threaders in the trial court, testified that avulsive hair removal opens a portal through which bacteria can enter the body through the skin. For this reason, she explained, she trains threaders in her medical spa to use an antiseptic on the eyebrow area before beginning the threading process and to apply *140 an astringent to the skin after the process is complete. The astringent helps to close up the hair follicle to make it difficult for bacteria to enter. Patel testified that she also trains threaders on methods of keeping their work area clean, keeping the thread sanitary, and on the importance of always using a new piece of thread (and any other single-use items) on each client. She testified that threaders may need to be able to identify skin infections or other conditions that would make threading unsafe for a particular client. Patel recognized that threading may lead to the spread of various contagious bacterial and viral infections and that a threader’s failure to utilize appropriate sanitation can further expose threading clients to infection and disease.

Applicants for a general cosmetology license or an esthetician speciality license are instructed in general sanitation and safety practices, and each of the specific procedures they learn incorporates the hygiene and safety practices pertinent to that procedure. If they attend a school that teaches threading, they learn to apply these concepts specifically to that practice, and if instead they attend a school that does not instruct in threading, they nevertheless learn these safety implications and requirements as applied to other avulsive forms of hair removal. Moreover, although there is evidence that only a few cosmetology schools currently teach threading, the Legislature could reasonably have concluded that more schools will teach it as demand for the procedure grows. Although there is evidence that no more than an hour of sanitation training is necessary for threading, there is other evidence from which the Legislature could reasonably conclude that the required instruction and testing would further its goal of protecting public health and safety through the regulation of cosmetology.

* * *

Texas’ cosmetology regulation as applied to threading is, to quote Justice Holmes, “injudicious”, though I would not go so far as to say “tyrannical”, and certainly not clearly arbitrary. I would hold that the regulation is rationally related to the State’s legitimate interest in protecting the health and safety of the public.

The Court pooh-poohs the Lochnerian “monster”. A word of caution: those who cannot remember the past are condemned to repeat it.81

I would affirm the judgment of the court of appeals. Accordingly, I respectfully dissent.

Justice Guzman, dissenting.

This Court has long maintained that it does not legislate from the bench. Today, it does just that. Worse yet, it does so in the context of revivifying substantive due process, one of the most volatile doctrines in constitutional history.1 Like the accompanying dissent, I maintain that while the regulation seems excessive as a matter of policy, it is nevertheless not unconstitutional as a matter of law. Further, I harbor doubts that the test propounded by the Court to evaluate issues of this nature will provide any guidance in future cases. Thus, I write separately to underscore my conception of the judicial role. Because I unequivocally believe that policymaking is *141 a prerogative properly and constitutionally vested in the Legislature, I respectfully dissent.

The Court’s opinion ably sets out the facts, and describes the somewhat byzantine web of regulations that apply to cosmetologists, a class that includes eyebrow threaders like the petitioners (“Threaders”). To legally practice cosmetology in Texas, a license is required. 16 TEX. ADMIN. CODE § 83.10(11).

The record shows that of the 750 hours required for an esthetician license, 40 hours are devoted to sanitation. Sanitation and hygiene issues are also intermittently addressed elsewhere during training, albeit in the context of instruction on other subjects. The fact that health and safety instruction comprises at least part of the required instruction is no small matter, given that the Threaders’ own expert observed that improper threading procedures can contribute to the spread of highly contagious bacterial and viral infections, including impetigo, staphylococcus aureus, and other similarly unpleasant maladies.

The central dispute concerns the training requirements, specifically the amount of time they necessarily require. The Threaders contend that as many as 710 of the 750 training hours for an esthetician license are unnecessary, given that they concern procedures unrelated to threading. The State disputes that math, but even its estimate concedes that as many as 320 of the curriculum hours are unrelated to health and safety issues engendered by eyebrow threading. In the Threaders’ view, the licensure courses require too much time and feature too much irrelevant material, and by mandating them for eyebrow threading, the State of Texas violates the guarantee of the Texas Constitution that “[n]o citizen of this State shall be deprived of ... liberty ... except by the due course of the law of the land.” TEX. CONST. art. I, § 19.

The Court propounds a novel test in resolving this core dispute. The second prong of this test holds that an as-applied challenge to an economic regulation statute under section 19’s substantive-due-course-of-law requirement will fail to overcome the presumption that the statute is constitutional, unless the challenging party demonstrates that the statute’s “actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.” Op. at 87– ––––. Relying on this element of the test, the Court estimates that approximately 42 percent of the minimum required training hours are “arguably” not relevant to the actual work performed by eyebrow threaders. Id. at 89–90. While this is not “determinative” of the constitutional question, the Court says that “the percentage must also be considered along with other factors, such as the quantitative aspect of the hours represented by that percentage and the costs associated with them.” Id.

*142 I have significant doubts that this standard is workable in practice.3 As the Court itself concedes, “[t]he dividing line is not bright between the number of required but irrelevant hours that would yield a harsh, but constitutionally acceptable, requirement and the number that would not.” Id. at 90. But this concession seems to prove the folly of the enterprise in the first place. Lacking a standard that can be implemented consistently, how can a court be expected to make determinations of this nature in future cases (which, I hasten to add, will surely follow in the wake of this opinion)? I recognize that in many areas of the law, bright-line tests are simply not appropriate nor attainable.4 But here the Court, with only the information gleaned from the limited record before us, is marching into a fraught area—substantive due process—armed only with an imprecise standard.

The Court agrees with the Threaders’ characterization of the regulation as arbitrary, but alas, that same adjective could be applied to the line-drawing necessarily involved here and in future cases. Is 750 hours too much to require for threading? From the Threaders’ perspective, perhaps. But from the vantage of someone injured by these procedures, perhaps not. Some threading techniques reportedly rely on placing one end of the string in the threader’s mouth, which would seem to invite a host of bacterial infections (superficial folliculitis, for instance). Different skin sensitivities could be placed at different risks by these procedures. The crucial point is that these considerations, and their relation to training programs, are quintessential legislative inquiries. Thus, I agree with the Court when it admits: “Differentiating between types of cosmetology practices is the prerogative of the Legislature and regulatory agencies to which the Legislature properly delegates authority,” and likewise with the statement that “it is not for courts to second-guess their decisions as to the necessity for and the extent of training that should be required for different types of commercial service providers.” Id. at 89. In my view, the plain truth of these statements suggests a contrary approach.

This case involves first principles, and timeless precepts bear repeating. By design, our system of government rests on checks and balances and separation of powers. The genius of the Founders lay in their prescience. Frankly acknowledging human frailty, they designed a system of government that apportions power among the three branches, allowing a proper balance of interests and ambitions. In order for this equipoise to persist, however, denizens of government’s separate branches must properly conceive of their relative roles. For the judiciary, as with the other branches, this means recognizing the limits on its own authority. This is no easy matter, given that human nature tilts to the arrogation of power; as Justice Antonin Scalia once waggishly noted, this enduring trait is why Lord Acton never uttered “ ‘[p]ower tends to purify.’ ” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 981, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Scalia, J., concurring in part and dissenting in part).

Were I a member of the Legislature, there is little question that I would look to *143 reduce the burden placed on eyebrow threaders, as I agree with the accompanying dissent’s sense that “on this record, threading regulation is obviously too much.”5 Op. at 131 (Hecht, C.J., dissenting). But I am not a legislator; I am a judge. Accordingly, I am duty-bound to apply the law regardless of my policy preferences. The difficult line-drawing problems involved in this case are best resolved by the Legislature, which by dint of its experience and competence is better equipped to decide these questions than this tribunal. The question is not whether these regulations are prudent, but whether they violate the Texas Constitution’s due-course-of-law provision. That is a different matter entirely. Because I disagree with the Court on this fundamental query, I respectfully dissent.

Footnotes

1

Amicus curiae briefs have been submitted by the Pacific Legal Foundation (in support of the Threaders); Houston Belt & Terminal Railway Co., BNSF Railway Co., and Union Pacific Railway Co.; and South Texas College of Law 2014 State Constitutional Law Class (not submitted in support of either party).

2

The Threaders cite the following to support their position: Christian v. La Forge, 194 Or. 450, 242 P.2d 797, 804 (1952) (en banc) (striking down fixed barbering prices because they only benefitted barbers, not the public).

3

As to procedural due process relationships between the Fourteenth Amendment and Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252–53 (1887).

4

See, e.g., State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602 (1957) (explaining it is essential that the police power “be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists”).

5

The State has regulated the practice of cosmetology since 1935. See Act of Apr. 25, 1935, 44th Leg., R.S., ch. 116, 1935 Tex. Gen. Laws 304, 304–11, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6, 1999 Tex. Gen. Laws 1431, 2182–2206, 2439–40 (repealing former Act while also adopting the Occupations Code). The stated intent of the initial legislation was to “prevent the spreading of contagious and infectious diseases.” Id. at 304, 311 (observing that the purpose of the Act was to “protect the public from inexperienced and unscrupulous beauty parlors and beauty culture schools” in response to the public being “daily exposed to disease due to insufficient care as to sanitation and hygiene”).

1

FREDERICK DOUGLASS, THE LIFE AND TIMES OF FREDERICK DOUGLASS 259 (photo. reprint 2001) (1882).

2

Honest work, Pope Francis recently reflected, means more than just earning our daily bread: “Where there is no work, there is no dignity.” Pope Francis (Pontifex). June 11, 2014, 1:11 a.m. Tweet. Available at https://twitter.com/Pontifex/status/608909299704709120.

3

Press Release, Annenberg Pub. Policy Ctr. of the Univ. of Penn., Americans know surprisingly little about their government, survey finds (Sept. 17, 2014), available at http://cdn.annenbergpublicpolicycenter.org/wp-content/uploads/Civics-survey-press-release-09-17-2014-for-PR-Newswire.pdf (last visited June 25, 2015); see also ANNENBERG PUB. POLICY CTR., CIVICS SURVEY APPENDIX at 2 (2014) (providing the methodology for the study), http://www.annenbergpublicpolicycenter.org/wp-content/uploads/Civics-survey-appendix-09-17-14.pdf (last visited June 25, 2015).

4

U.S. CONST. pmbl.

5

TEX. CONST. art. I.

6

Widely, if not assuredly, attributed to Benjamin Franklin.

7

Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

8

Washington v. Glucksberg, 521 U.S. 702, 703, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); see also 1 WILLIAM BLACKSTONE, COMMENTARIES *427 (“At common law every man might use what trade he pleased....”).

9

TEX. CONST. art. I, § 19 (emphasis added).

10

Id.

11

The principal dissent dramatically—and predictably—accuses the Court of seeking to unleash the “Lochner bogeyman is a mirage but a ready broadside aimed at those who apply rational basis rationally. As one constitutional law scholar noted a generation ago, “ ‘Lochnerizing’ has become so much an epithet that the very use of the label may obscure attempts at understanding.” LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 435 (1st ed. 1978).

I doubt the 3–0 panel of the U.S. Court of Appeals for the Fifth Circuit and Judge Sparks of the Western District of Texas believed they were unleashing any monsters, or, scarier still, legislating from the bench!—when they recently struck down state economic regulations on rational-basis grounds. See St. Joseph Abbey, 712 F.3d at 227.

12

274 U.S. 200, 205, 47 S.Ct. 584, 71 L.Ed. 1000 (1927).

13

Id. at 207, 47 S.Ct. 584.

14

Id.

15

Id.

16

Letter from Oliver Wendell Holmes, Jr. to Lewis Einstein (May 19, 1927), in THE HOLMES–EINSTEIN LETTERS: CORRESPONDENCE OF MR. JUSTICE HOLMES AND LEWIS EINSTEIN 1903–1935 267 (James Bishop Peabody, ed., 1964).

17

KEN I. KERSCH, CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW 151 (2004).

18

Letter from Oliver Wendell Holmes, Jr. to Harold Laski (Mar. 4, 1920), in 1 HOLMES–LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI 1916–1935 249 (Mark DeWolfe Howe ed., 1953). Holmesian deference was praised by turn-of-the-century Progressives who craved a pervasive regulatory state, and got it via the New Deal-era U.S. Supreme Court.

19

See 1 ANNALS OF CONG. 439 (1789) (Joseph Gales ed., 1843).

20

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423, 4 L.Ed. 579 (1819).

21

When it comes to the “judicial activism” label, some observers throw up their hands entirely and insist it all turns on whose ox is gored. Justice Kennedy responds to charges of judicial activism this way: “An activist court is a court that makes a decision you don’t like.” Hon. Anthony Kennedy, Address at Forum Club of the Palm Beaches, Florida (May 14, 2010), available at http://www.c-span.org/video/?293521-1/justice-kennedy-remarks-supreme-court.

22

Judge Bork believed legislative majorities should wield near-absolute power, not just with economic policy as favored by turn-of-the-century Progressives, but across the board, including the unenumerated rights enshrined during the so-called “rights revolution” of the mid–20th century.

23

ROBERT H. BORK, THE TEMPTING OF AMERICA 139 (1990).

24

TIMOTHY SANDEFUR, THE RIGHT TO EARN A LIVING–ECONOMIC FREEDOM AND THE LAW (2010) (tracing the history of the right to earn a living as it was understood by the Founders, through the Civil War Amendments, the Progressive era, and current controversies over restrictive licensure laws); DAMON ROOT, OVERRULED—THE LONG WAR FOR CONTROL OF THE U.S. SUPREME COURT (2014) (chronicling the conflicting visions of judicial review and the degree to which courts should intervene to protect individual rights against government encroachment).

25

See THE DECLARATION OF INDEPENDENCE para. 1–2 (U.S. 1776).

26

5 U.S.( 1 Cranch 137) 2 L.Ed. 60 (1803).

27

31 U.S. (6 Pet. 515) 8 L.Ed. 483 (1832).

28

HORACE H. HAGAN, EIGHT GREAT AMERICAN LAWYERS 79 (Fred B. Rothman & Co. 1987) (1923).

29

See, e.g., U.S. ––––, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015).

30

Judge Bork favored both constitutional originalism and judicial deference to the democratic process, two ideals that sometimes clash, producing what Professor Ilya Somin calls the “Borkean dilemma.” Ilya Somin, The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy, 80 U. OF CHI. L. REV. DIALOGUE 243 (2013). Originalism sometimes requires judicial invalidation of laws that contradict the Constitution’s original meaning. But striking down laws contradicts Bork’s preference for judicial minimalism. So while Judge Bork favored judicial deference, he also criticized as “judicial activism” certain New Deal-era Court decisions that expanded government control over the economy. BORK, supra note 23, at 56–57 (discussing Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), and lamenting that the Court’s “new, permissive attitude toward congressional power was a manifestation of judicial activism”).

31

NFIB, 132 S.Ct. at 2566.

32

Transcript of Oral Argument at 30, Nat’l Fed’n of Indep. Bus. v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012), available at http://www.archives.gov/research/court-records/supreme-court/11-398-tuesday.pdf.

33

Id. at 110. The Chief Justice rejected the Lochner”—with courts selectively allowing Congress to use its commerce power to impose a health-insurance mandate but not an eat-your-broccoli mandate. Id. at 39.

34

Jeff Mason, Obama takes a shot at Supreme Court over healthcare, REUTERS, Apr. 2, http://www.reuters.com/article/2012/04/02/us-obama-healthcare-idUSBRE8310WP20120402.

35

Greg Jaffe, Why does President Obama criticize the Supreme Court so much?, WASH. POST, June 20, 2015, http://www.washingtonpost.com/politics/why-does-president-obama-criticize-the-supreme-court-so-much/2015/06/20/b41667b4-1518-11e5-9ddc-e3353542100c_story.html.

36

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 375, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

37

Post, at 135. (Hecht, C.J., dissenting).

38

Id.

39

Horne v. Dep’t of Agric., ––– U.S. ––––, 135 S.Ct. 2419, 192 L.Ed.2d 388 (2015).

40

While the dissenting Justices favor federal-style deference in economic matters, there is a notable distinction between the Texas Constitution and the federal Constitution as interpreted by federal courts. The Texas Constitution protects not just life, liberty, and property, but also “privileges or immunities,” language the U.S. Supreme Court read out of the Fourteenth Amendment in the Slaughter–House involved special-interest favoritism masquerading as a public-health measure, a law granting a private corporation an exclusive benefit at the expense of hundreds of local butchers. A few years earlier, when the Fourteenth Amendment was adopted to counter the Black Codes and other oppressive state laws, the amendment’s author, antislavery Representative John Bingham, confirmed the liberties it protected included “the right to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen and to be secure in the enjoyment of the fruits of your toil.” CONG. GLOBE, 42D CONG., 1ST SESS., 86 app. (1871). The Fourteenth Amendment was a response to a host of post-Civil War actions to oppress former slaves. Section One, drafted by Representative Bingham, includes three clauses to safeguard individual rights: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. So what are an American citizen’s privileges and immunities? According to perhaps the leading Fourteenth Amendment history, anti-slavery abuses spurred Congress to fortify all Americans’ civil rights against overbearing state governments, and to restore the Constitution’s original purpose as “a document protecting liberty.” MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 7 (1986). See also AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 166 (1998) (noting that the words “privileges,” “immunities,” “rights,” and “freedoms” are “roughly synonymous”). Citing Madison and other founders who used the words “rights,” “liberties,” “privileges,” and “immunities” interchangeably, CURTIS, supra at 64–65, Curtis found similar usage in William Blackstone’s influential 1765 Commentaries on the Laws of England, which described “privileges and immunities” as a blend of rights and liberties—although Curtis notes that Blackstone “divided the rights and liberties of Englishmen into those ‘immunities’ that were the residuum of natural liberties and those ‘privileges’ that society had provided in lieu of natural rights.” CURTIS, supra at 64. Boiled down, privileges are state-given civil rights while immunities are God-given natural rights.

When the Court in Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 123 n.327 (2000).

The important point for today’s case is that Slaughter–House, while holding that the Fourteenth Amendment’s Privileges or Immunities Clause offered no protection for individual rights against state officials, underscored that states themselves possess power to protect their citizens’ privileges or immunities, including the right to pursue an honest living against illegitimate state intrusion. As the Court correctly notes, the drafters of the Texas Constitution were doubtless aware of this reservation of power to the states when they passed our own Privileges or Immunities Clause just two years later in 1875. One question lurking in today’s case was whether this Court would do to our Privileges or Immunities Clause what the U.S. Supreme Court did to the federal clause—nullify it by judicial fiat.

41

Post, at 131. (Hecht, C.J., dissenting).

42

Id.

43

Id. at 139.

44

See, e.g., Brantley v. Kuntz, No. A–13–CA–872–SS, 98 F.Supp.3d 884, 2015 WL 75244 (W.D.Tex. Jan. 5, 2015).

45

The principal dissent cites our 1957 decision in Id. at 824 (Boyd, J., concurring, joined by Guzman, J.).

46

The dissents side with Justice Holmes’s oft-quoted Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). This proviso, according to Judge Robert Bork, “spoiled it all” and prompted Bork to accuse Justice Holmes, a fellow judicial minimalist, of activism himself. BORK, supra note 23, at 45. (“So Holmes, after all, did accept substantive due process, he merely disagreed ... about which principles were fundamental.”).

A quick word on Id. at 65, 25 S.Ct. 539.

Historical note: This is the first Justice Harlan, The Great Dissenter, not his grandson who served on the Court in the mid–20th century. The first Justice Harlan, a strong proponent of natural rights, famously dissented in Lochner had initially garnered a five-vote majority, but someone switched his vote.

While Justice Harlan’s dissent, unlike Justice Holmes’s dissent, believed economic liberty was constitutionally enshrined, he understood that states have a valid police-power interest in advancing public welfare. Id. at 69, 25 S.Ct. 539. Justice Harlan would have upheld the New York maximum-hours law, but he stressed the presumption of constitutionality can be rebutted by evidence showing the restriction was arbitrary, unreasonable, or discriminatory. He simply found the government’s health-and-safety justification plausible.

Importantly, there was no disagreement—none—between the Lochner majority.

The core question is one of constitutional limitation. Should judges blindly accept government’s health-and-safety rationale, or instead probe more deeply to ensure the aim is not suppressing competition to benefit entrenched interests? A century and a half of pre-Lochner focused on a narrow issue: whether the maximum-hours law was truly intended to serve the general welfare or “other motives,” namely to advantage the bakers’ union and unionized bakeries over small, non-union bakeries, many of which employed disfavored immigrants.

Interestingly, some of the Texas commentary immediately following Lochner was quite favorable, including in the Dallas Morning News, which wrote “The right of contract is one of the most sacred rights of the freeman, and any interference with such privilege by Legislatures or courts is essentially dangerous and vicious.” In Which the Right of Contract is Upheld, DALLAS MORNING NEWS, Apr. 20, 1905, at 6.

A wealth of contemporary legal scholarship is reexamining Lochner is evolving among many leading constitutional theorists. See, e.g., Colby & Smith, supra at 527; DAVID E. BERNSTEIN, REHABILITATING LOCHNER—DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2011).

47

WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 4 sc. 1.

48

Licensing restrictions impact price “along four dimensions” according to one recent study:

First, professional licensing can act as a barrier to entry into the profession. Second, licensing can establish rules of practice, like advertising bans, that restrict competition. Third, state boards can suppress interstate competition by recognizing licenses only from their own state. Finally, a profession can prevent competition by broadening the definition of its practice, bringing more potential competitors under its licensing scheme. These ‘scope-of-practice’ limitations tend to oust low-cost competitors that operate at the fringes of an established profession.

Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, 162 U. PA. L. REV. 1093, 1112 (2014) (footnotes and citations omitted).

49

Some government labor economists have concluded that “mandatory entry requirements of licensing cannot necessarily be relied upon to raise the quality of services.” CAROLYN COX & SUSAN FOSTER, BUREAU OF ECON., FTC, THE COSTS AND BENEFITS OF OCCUPATIONAL REGULATION 21–27, 40 (1990), available at http://www.ramblemuse.com/articles/cox_foster.pdf.

50

Edlin and Haw, supra note 48, at 1111–12 n.101 and accompanying text (citing numerous academic studies questioning the putative benefits of licensure).

51

INTERIM REPORT TO THE 83RD TEX. LEG., 82D TEX. H. COMM. ON GOV’T EFFICIENCY & REFORM 57 (Jan. 2013), available at http://www.house.state.tx.us/_media/pdf/committees/reports/82interim/House-Committee-on-Goverement-Efficiency-and-Refrom-Interim-Report.pdf.

52

Id.

53

Traditionally, only the medical and legal professions were subject to occupational licensing. J.R.R., II, Note, Due Process Limitations on Occupational Licensing, 59 VA. L. REV. 1097, 1097 (1973). Later, as women, minorities and immigrants—those lacking political power—entered the labor market, incumbent interests lobbied politicians to erect barriers to thwart newcomers. For example, California called a constitutional convention in 1878 to combat what the Workingmen’s Party called the “Chinese Menace,” an influx of immigrant laborers from China. The result, cheaper labor costs and thus cheaper goods and services, was intolerable to incumbent interests, who imposed severe barriers to entry. One convention delegate confessed his goal forthrightly: “to hamper them in every way that human ingenuity could invent.” SANDEFUR, supra note 24, at 146.

One such xenophobic law targeted Chinese launderers, who dominated San Francisco’s laundry market. The U.S. Supreme Court said no. In Id. at 370, 6 S.Ct. 1064.

54

Stephanie Simon, A License to Shampoo: Jobs Needing State Approval Rise, WALL ST. J., Feb. 7, 2011, available at http://www.wsj.com/articles/SB10001424052748703445904576118030935929752.

55

Morris M. Kleiner & Alan B. Krueger, The Prevalence and Effects of Occupational Licensing, BRITISH J. OF INDUSTRIAL RELATIONS 676, 678 (2010).

56

Id. at 679.

57

Id. at 678. See also MORRIS M. KLEINER, LICENSING OCCUPATIONS: ENSURING QUALITY OR RESTRICTING COMPETITION? 1 (W.E. Upjohn Institute for Employment Research, 2006); Morris M. Kleiner, Occupational Licensing: Protecting the Public Interest or Protectionism? 1 (W.E. Upjohn Institute for Employment Research, Policy Paper No. 2011–009, 2011).

58

Edlin and Haw, supra note 48, at 1102. Today, licensing substitutes to some extent for unionization. See Suzanne Hoppough, The New Unions, FORBES, Feb. 25, 2008, available at http://www.forbes.com/part_forbes/2008/0225/100.html.

59

Alan B. Krueger, Do You Need a License to Earn a Living? You Might Be Surprised at the Answer, N.Y. TIMES, Mar. 2, 2006, at C3.

60

INTERIM REPORT, supra note 51, at 58.

61

Id.

62

Id.

63

Id.

64

Id. (citing KLEINER, LICENSING OCCUPATIONS, supra note 57, at 12).

65

Kleiner & Krueger, supra note 55, at 678.

66

Louisiana is the only state in the country that requires licenses for florists. See 3:3809 (2014). And until 2010, part of the licensing exam for aspiring florists included a flower-arranging demonstration ... judged by their future competition. See id. § 3:3807(B)(2) (2008), amended by H.B. 1407, 2010 Leg., Reg. Sess. (La. 2010); see also Robert Travis Scott, Florist bill delivered to Gov. Bobby Jindal’s desk, THE TIMES–PICAYUNE (June 16, 2010), available athttp://www.nola.com/politics/index.ssf/2010/06/florists_bill_delivered_to_gov.html.

67

See, e.g., D.C. CODE § 47–2853.103 (2015).

68

In Arizona and Nebraska, you can’t be a horse masseuse without a license. See ARIZ. REV. STAT. ANN. § 32–2231(A)(4) (West 2015) (defining practice of veterinary medicine); 172 NEB. ADMIN. CODE § 182–004.02D (2015) (eligibility for licensure as an Animal Therapist in Massage Therapy); see also ANIMAL MASSAGE LAWS BY STATE, INT’L ASSOC. OF ANIMAL MASSAGE AND BODYWORK, http://www.iaamb.org/reference/state-laws-2013.html (last visited June 25, 2015).

69

See, e.g., MASS. GEN. LAWS ANN. ch. 131 § 77(2) (West 2015) (“[N]o person shall possess a ferret for breeding purposes without obtaining a license from the director....”).

70

See id. ch. 140 § 185I(2) (“No person shall tell fortunes for money unless a license therefor has been issued by the local licensing authority.”).

71

ALA. CODE § 34–7b–1(21) (2014). See also Simon, supra note 54 (surveying trade regulations in several states, including shampooing regulations in Texas and barber regulations in California).

72

TEX. OCC. CODE § 1802.051(a).

73

16 TEX. ADMIN. CODE § 402.402(b).

74

President Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON 3–4 (Henry A. Washington ed., 1854).

75

U.S. CONST. amend. IV.

76

Id. amend. VIII.

77

Id. amend. IV.

78

Id. amend. VIII.

79

MILTON FRIEDMAN & ROSE FRIEDMAN, FREE TO CHOOSE 240 (1980) (emphasis in original).

80

Hettinga v. United States, 677 F.3d 471, 482–83 (D.C.Cir.2012) (Brown, J., joined by Sentelle, C.J. concurring).

81

Id. at 483.

82

––– U.S. ––––, 134 S.Ct. 423, 187 L.Ed.2d 281 (2013).

83

348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

84

Id. at 223.

85

Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1250–51 (1998). As noted above, the Clause’s abolitionist author explained that it was intended to safeguard “the liberty ... to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.” CONG. GLOBE, 42D CONG., 1ST SESS., 86 app. (1871). The Fourteenth Amendment’s legislative record is replete with indications that “privileges or immunities” encompassed the right to earn a living free from unreasonable government intrusion. Id.

As explained above, the U.S. Supreme Court’s nullification of the federal Privileges or Immunities Clause in Slaughter–House reflects a deeply flawed understanding of constitutional history.

86

United States v. Searan, 259 F.3d 434, 447 (6th Cir.2001)).

87

Id.

88

Id. at 224.

89

Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir.2004).

90

A few years ago, Jon Stewart’s The Daily Show lampooned state efforts to regulate hair braiding. See The Daily Show (Comedy Central television broadcast June 3, 2004), available at http://thedailyshow.cc.com/videos/adygsa/the-braidy-bill.

91

See Brantley v. Kuntz, No. A–13–CA–872–SS, 98 F.Supp.3d 884, 894, 2015 WL 75244, *8 (W.D.Tex. Jan. 5, 2015) (“[T]he regulatory scheme ... exclude[s] Plaintiffs from the market absent a rational connection ...”).

92

See id. at 887–88, 2015 WL 75244 at *2.

93

See id. at 893–94, 2015 WL 75244 at *7.

94

See id. at 892–93, 2015 WL 75244 at *6. The Oregonian recently profiled a hair braider in Oregon, where braiders must have a cosmetology license, who daily crosses the border into Washington, where braiders are exempt. Most of her clients cross the border, too. The options for customers are simple: pay the cartel price or find an illicit braider. See Anna Griffin, Braiding African American Hair at center of overregulation battle in Oregon, THE OREGONIAN (Aug. 11, 2012), http://www.oregonlive.com/politics/index.ssf/2012/08/braiding_african_american_hair.html.

95

Clayton v. Steinagel, 885 F.Supp.2d 1212, 1215 (D.Utah 2012)).

96

Id.

97

Id. at 894, 2015 WL 75244 at *8.

98

Id.

99

Angela Morris, Braider Wins Against State Barber Regulations, TEXAS LAWYER, Jan. 19, 2015, available at http://www.texaslawyer.com/id=1202715320677/Braider-Wins-Against-State-Barber-Regulations.

100

Act of May 22, 2015, 84th Leg., R.S., ch. 413, § 2, 2015 Tex. Sess. Law Serv. 2717 (to be codified at Tex.Occ.Code § 1601.003(2)(E)), available at http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/HB02717F.pdf#navpanes=0.

101

See Morris M. Kleiner, Occupational Licensing, 14 J. ECON. PERSPECTIVES 189, 191 (2000) (describing the composition of state licensing boards).

102

––– U.S. ––––, 135 S.Ct. 1101, 191 L.Ed.2d 35 (2015).

103

Id. t 1110.

104

See generally 7 (2004).

105

Parker state action immunity: (1) state articulation of its purpose to displace competition, and (2) active state supervision).

106

See Parker, 317 U.S. at 351, 63 S.Ct. 307 (“The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state.”).

107

See Parker, a nonsovereign actor is one whose conduct does not automatically qualify as that of the sovereign State itself.”) (citation omitted).

108

25 TEX. ADMIN. CODE § 157.32(c)(2)(B).

109

TEX. OCC. CODE § 1601.253(c)(2).

110

Id. § 455.156(b)(1).

111

Id. § 1601.257(b)(3).

112

Id. § 1602.257(b)(3).

113

Id. § 1602.254(b)(3). A Class A Barber who completes an additional 300 hours of instruction in cosmetology—total of 600 hours of training—may also be eligible to become a full-service cosmetologist. Id. § 1602.254(c).

114

See UTAH ADMIN. CODE r. 309–305–5 (2015) (providing for certification upon completion of written and practical examinations).

115

Prior to the 1960s and 1970s, rigid state laws codified sexual stereotypes that distinguished male barbers and barbershops from female cosmetologists (or beauticians) and beauty parlors. Unisex hair salons became in vogue in the late 1960s through the 1970s as courts invalidated these state statutes under the equal protection clause of the Fourteenth Amendment.

Today, although there is hardly a distinction between most barber and cosmetology services, there is plenty of opportunity for overzealous regulators to tag unsuspecting shop owners with “gotcha” fines. See, e.g., Tex. Dep’t of Licensing & Regulation v. Roosters MGC, LLC, No. 03–09–00253–CV, 2010 WL 2354064 (Tex.App.–Austin June 10, 2010, no pet.) (discussing whether a cosmetologist’s use of a safety razor to remove hair from a customer’s neck or face violates state law controlling what services can be provided exclusively by barbers).

116

16 TEX. ADMIN. CODE §§ 82.10(8), (23).

117

Tex. Att’y Gen. Op. No. JC–0211 (2000) (“We think it likely that most observers would consider the sideburns worn by the late Elvis Presley at the time of his early success in 1956 as part of his hair. On the other hand, whether the muttonchops which adorned his face at the time of his death were hair which a cosmetologist might trim, or a partial beard which could be serviced only a barber, is a question which in the absence of any articulated standard might well present difficulties to a cosmetologist who wished to remain within his or her licensed practice.”).

118

Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Exam’rs, 254 S.W.3d 714 (Tex. App–Austin 2008, pet. denied) (invalidating the Texas State Board of Podiatric Medical Examiners rule defining the word “foot”).

119

See e.g., SANDEFUR, supra note 24, at 24.

120

Id. (noting that monopoly laws and restrictive licensing schemes were “often used to give economic favors to politically influential lobbyists ...”).

121

One powerful way regulations handicap innovation is through sweeping, inflexible, one-size-fits-all measures that crowd out novel services. For example, in the recent teeth-whitening case at the U.S. Supreme Court, the state dental board defined dentistry broadly to include teeth whitening. N.C. State Bd. of Dental Exam’rs, ––– U.S. ––––, 135 S.Ct. 1101, 1120, 191 L.Ed.2d 35 (2015). In today’s case, eyebrow threaders want to thread eyebrows—and only want to thread eyebrows—but Texas defines the regulated trade of cosmetology so broadly, and irrationally, that threaders must take pricey and time-consuming classes to learn, well, nothing about threading but lots about non-threading. These Texans aim to provide a single service, but the government—exercising maximum will but minimum judgment—shackles creativity and innovation by lumping threading in with licensed, full-fledged cosmetology and requiring people to spend untold hours and dollars learning wholly irrelevant cosmetology techniques. The result, disproportionately affecting the poor, is the so-called “Cadillac effect”: would-be entrepreneurs squashed by exorbitant start-up costs, and would-be consumers forced to either (1) pay a higher-than-necessary price (a Cadillac) when all they want to buy is a discrete service at a lower price (a Kia), or (2) go without, or perhaps try to do it themselves.

122

THE FEDERALIST No. 10, at 79 (James Madison) (Clinton Rossiter ed., 1961).

123

BLACK’S LAW DICTIONARY 1453 (10th ed. 2009).

124

129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889).

125

See, e.g., Dent with approval but declining to extend).

126

Dent, 129 U.S. at 122, 9 S.Ct. 231.

127

Id.

128

Id.

129

353 U.S. 232, 238–39, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (holding that former communist ties are not sufficiently related to the practice of law to warrant disbarment).

130

Id. at 239, 77 S.Ct. 752.

131

291 U.S. 502, 530, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

132

Id. at 537, 54 S.Ct. 505.

133

Id. at 530, 54 S.Ct. 505.

134

348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

135

Id. at 487–89, 75 S.Ct. 461.

136

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). Indeed, the label “rational basis” is misleading because the federal test doesn’t require the law to actually make sense. Rather, it asks whether a lawmaker maybe, possibly, conceivably, plausibly, imaginably, hypothetically might have thought it was a good idea. It doesn’t even matter if lawmakers actually intended to violate the Constitution. The law will be upheld so long as a court can conjure any legitimate public purpose for the law. One complication: The U.S. Supreme Court has yet to articulate with precision what constitutes a “legitimate” government interest. But how can one make sense of the “legitimate state interest” requirement unless and until the Court explains what purposes are and are not acceptable? Answering the question would necessarily require the Court to state straightforwardly that some things are illegitimate state interests.

137

See, e.g., ––– U.S. ––––, 134 S.Ct. 423, 187 L.Ed.2d 281 (2013).

138

See St. Joseph Abbey, 712 F.3d at 215.

139

Brantley v. Kuntz, No. A–13–CA–872–SS, 98 F.Supp.3d 884, 2015 WL 75244 (W.D.Tex. Jan. 5, 2015).

140

304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

141

Id. at 152.

142

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

143

Id. at 315, 113 S.Ct. 2096.

144

Id. at 314–15, 113 S.Ct. 2096.

145

As mentioned above, the Texas Constitution has its own “privileges or immunities”-like language, and while Slaughter–House Cases, 83 U.S. (16 Wall. 36), 77–78, 21 L.Ed. 394 (1873). Texas did exactly that in its 1875 Constitution, acting quickly on the Court’s statement that protection of individuals’ non-federal privileges and immunities was a state concern. As the Court notes, however, the plaintiffs did not raise a separate privileges or immunities challenge.

146

See, e.g., Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 465 S. TEX. L. REV. 163, 165 (2004).

147

304 U.S. 144, 152 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (creating a dichotomy between laws that regulate economic affairs, which get deferential judicial review, and laws that curtail important personal liberties or that target “discrete and insular minorities,” which get more searching judicial scrutiny).

148

Dolan v. City of Tigard, 512 U.S. 374, 392, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994).

149

Edwards v. Aguillard, 482 U.S. 578, 586–87, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).

150

United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).

151

––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

152

Id. at 2485.

153

Id. at 2494.

154

Id. at 2487.

155

The Court first recognized the right “to follow any lawful calling, business, or profession he may choose” in Dent v. West Virginia, 129 U.S. 114, 121, 9 S.Ct. 231, 32 L.Ed. 623 (1889). For 126 years the Court has reaffirmed that right, even though judicial protection of it has waned. See supra notes 124–29 and accompanying text.

156

Sorrell v. IMS Health Inc., ––– U.S. ––––, 131 S.Ct. 2653, 2672, 180 L.Ed.2d 544 (2011) (“Indeed the government’s legitimate interest in protecting consumers from ‘commercial harms’ explains ‘why commercial speech can be subject to greater governmental regulation than noncommercial speech.’ ”) (citations omitted).

157

Id. at 2672–84.

158

The constitutional double standard becomes perplexing in cases where fundamental and non-fundamental rights overlap. A few years ago, the Eleventh Circuit upheld the constitutionality of an Alabama law banning the commercial distribution of sex toys. Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 740 (5th Cir.2008).

159

545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (upholding the power of government to condemn private property for economic-development purposes).

160

In the wake of Kelo, 45 states enacted property-rights reform to curb eminent domain. See Ilya Somin, The political and judicial reaction to Kelo, WASH. POST, June 4, 2015, available at http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/04/the-political-and-judicial-reaction-to-kelo/.

161

Kelo, 545 U.S. at 518, 125 S.Ct. 2655 (Thomas, J., dissenting).

162

Id. at 469, 125 S.Ct. 2655.

163

Id. at 488, 125 S.Ct. 2655.

164

Id. at 483, 125 S.Ct. 2655.

165

Id. at 494, 125 S.Ct. 2655 (O’Connor, J., dissenting).

166

554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

167

Id. at 680 n.39, 128 S.Ct. 2783 (Stevens, J., dissenting).

168

Allen v. Tooley, (1613) 80 Eng. Rep. 1055 (K.B.) 1057; 2 Bulstrode 186, 189.

169

Id. at 1055.

170

R.H. COASE, The Lighthouse in Economics (1974), in THE FIRM, THE MARKET, AND THE LAW 187, 196 (1988) (quoting Chief Justice Sir Edward Coke) (spelling modernized).

171

SANDEFUR, supra note 24, at 23.

172

Id.

173

ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 122 (Edwin Cannon, ed., Random House 1937).

174

Jefferson echoed phrasing from the Virginia Declaration of Rights, written by Jefferson’s friend George Mason just one month before Jefferson’s masterpiece was issued, who extolled “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” See Va. Declaration of Rights § 2 (1776), in 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 234–35 (1971).

175

THOMAS JEFFERSON, A Summary View of the Rights of British America (1774), in THE JEFFERSONIAN ENCYCLOPEDIA 963, 964 (John P. Foley ed., Funk & Wagnalls Co. 1900).

176

SMITH, supra note 173, at 121–22.

177

See WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 1.

178

Matt Flegenheimer, $1 Medallions Stifling the Dreams of Cabdrivers, N.Y. TIMES, Nov. 14, 2013, at A24.

179

Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, Q.J. ECON., 371–400 (1983).

180

INTERIM REPORT, supra note 51, at 59.

181

Id.

182

Id.

183

Id. at 60.

184

Id. at 62.

185

TEX. GOV’T CODE § 325.0115(b). The Commission is required to assess:

(1) whether the occupational licensing program:

(A) serves a meaningful, defined public interest; and

(B) provides the least restrictive form of regulation that will adequately protect the public interest;

(2) the extent to which the regulatory objective of the occupational licensing program may be achieved through market forces, private or industry certification and accreditation programs, or enforcement of other law;

(3) the extent to which licensing criteria, if applicable, ensure that applicants have occupational skill sets or competencies that correlate with a public interest and the impact that those criteria have on applicants, particularly those with moderate or low incomes, seeking to enter the occupation or profession; and

(4) the impact of the regulation, including the extent to which the program stimulates or restricts competition and affects consumer choice and the cost of services. Id. at § 325(b)(1)–(4).

186

The new law authorizes the Commission’s chair to deny such a request for review on the recommendation of the executive director. The bill requires the Commission to report its review findings to the Legislature before the start of the next legislative session. The bill also requires the Commission, in analyzing legislation proposing the creation of an occupational licensing program, to determine whether the unregulated practice of the occupation would be inconsistent with the public interest, whether the public can reasonably be expected to benefit from an assurance of initial and continuing professional skill sets or competencies, and whether the public can be more effectively protected by means other than state regulation. Id. § 325.023(c)(1)–(3).

187

HOWARD BAETJER, JR., FREE OUR MARKETS–A CITIZENS’ GUIDE TO ESSENTIAL ECONOMICS 95–96 (2013).

188

KLEINER, LICENSING OCCUPATIONS, supra note 57, at 53.

189

James Madison, Charters (Jan. 19, 1792), in JAMES MADISON—WRITINGS 733, 736 (Jack N. Rakove ed., 1999). See also 1 JAMES WILSON, Of the Study of the Law in the United States, in THE WORKS OF JAMES WILSON: ASSOCIATE JUSTICE OF THE SUPREME COURT, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA 1, 6–7 (James De Witt Andrews ed., Callaghan & Co. 1895) (“Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.”).

190

James Madison, Letter to Spencer Roane (Sept. 2, 1819), in JAMES MADISON: WRITINGS, supra note 189, at 736.

191

1 CHARLES DE SECONDAT MONTESQUIEU, THE SPIRIT OF LAWS 181 (1st Amer. from the 5th London ed. 1802).

192

THE FEDERALIST No. 51, at 298 (James Madison) (Clinton Rossiter ed., 1961) (citing Montesquieu for the proposition that the three branches of government, yet intertwined, do not violate the principle of separation of powers).

193

In re State Bd. for Educator Certification, 452 S.W.3d 802, 808 n.38 (Tex.2014).

194

TEX. CONST. art. II, § 1).

195

U.S. CONST. art. I, § 8, cl. 18.

196

See supra notes 40, 86, and 146, and accompanying text.

197

U.S. CONST. pmbl. See also TEX. CONST. art. I (declaring its utmost mission to safeguard “the general, great and essential principles of liberty and free government”).

198

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (underscoring that governments are “instituted among Men” in order to “secure” our “unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”).

199

See, supra notes 12–18 (discussing Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), which upheld forcible sterilization of the “feeble-minded”).

200

Congress placed the Declaration of Independence at the outset—page 1, volume 1—of the United States Code, under this heading: “Organic Laws of the United States of America.” Lincoln describes the Declaration of Independence as a lens through which just laws become clear—as the framework for interpreting the law—when he calls the Declaration an “apple of gold,” and the Constitution the “frame of silver” around it. ABRAHAM LINCOLN, Fragment on the Constitution and the Union (Jan. 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 169 (Roy P. Basler ed., 1953). The Constitution, indeed all laws, must not be considered independently of the ultimate purpose for which they are designed: not to unhinge democracy, but to secure liberty.

201

In re State Bd. for Educator Certification, 452 S.W.3d 802, 808 (2014).

202

Id.

203

Letter from Thomas Jefferson to James Madison, Paris (1787), in THE JEFFERSONIAN ENCYCLOPEDIA: A COMPREHENSIVE COLLECTION OF THE VIEWS OF THOMAS JEFFERSON 277 (John P. Foley ed., 1900). See also Edmund Burke, Speech on Moving His Resolutions for Conciliation with the Colonies, Mar. 22, 1775, in EDMUND BURKE: SELECTED WRITINGS AND SPEECHES 147, 158 (Peter J. Stanlis ed., Doubleday & Co. 1968) (“In this character of the Americans a love of freedom is the predominating feature which marks and distinguishes the whole: and as an ardent is always a jealous affection, your colonies become suspicious, restive, and untractable, whenever they see the least attempt to wrest from them by force, or shuffle from them by chicane, what they think the only advantage worth living for. This fierce spirit of liberty is stronger in the English colonies, probably, than in any other people of the earth ...”).

204

Robinson v. Crown Cork & Seal, Inc., 335 S.W.3d 126, 165 (Tex.2010) (Willett, J., concurring). Or, as 18th-century philosopher David Hume cautioned, “It is seldom, that liberty of any kind is lost all at once.” Rather, suppression “must steal in upon [people] by degrees, and must disguise itself in a thousand shapes, in order to be received.” DAVID HUME, OF THE LIBERTY OF THE PRESS (1741), in DAVID HUME: POLITICAL ESSAYS 3 n.4 (Knud Haakonssen ed., 1994).

205

TEX. CONST. pmbl.

206

Robinson, 335 S.W.3d at 164 (Willett, J., concurring).

207

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

208

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 319 (P. Bradley ed. 1994).

209

Id.

210

To the degree that “footnote four” of Carolene Products says “discrete and insular minorities” in the political arena deserve special judicial protection, it is tough to imagine a group more disadvantaged by the majoritarian political process than would-be entrepreneurs denied their calling by Byzantine, State-enforced barriers enacted at the behest of entrenched, politically powerful interests.

211

Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir.2004).

212

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

213

Washington v. Glucksberg, 521 U.S. 702, 703, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).

214

THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).

215

MADISON, Property (Mar. 29, 1792), in JAMES MADISON: WRITINGS, supra note 189, at 516. The author of the Declaration agreed: “[E]very one has a natural right to choose that [vocation] which he thinks most likely to give him comfortable subsistence.” THOMAS JEFFERSON, THOUGHTS ON LOTTERIES (1826), in THE JEFFERSONIAN ENCYCLOPEDIA 609 (John P. Foley ed., Funk & Wagnalls Co. 1900).

216

As discussed above, see supra notes 194–96 and accompanying text, the Texas Constitution does not mirror exactly the U.S. Constitution, and our Privileges or Immunities Clause, best I can tell, is alive and well, unlike its federal counterpart.

217

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

218

THE FEDERALIST NO. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

219

Id. at 469.

220

Letter from David Crockett to his children (Jan. 9, 1836), in H.W. BRANDS, LONE STAR NATION 332 (2004).

1

Ante at 89.

2

Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring) (citations omitted).

3

198 U.S. 45, 58–59, 25 S.Ct. 539, 49 L.Ed. 937 (1905).

4

Id. at 56, 25 S.Ct. 539.

5

304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

6

See, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

7

Act of Apr. 25, 1935, 44th Leg., R.S., ch. 116, § 26, 1935 Tex. Gen. Laws 304, 311, amended by Act of Nov. 14, 1935, 44th Leg., 2d C.S., ch. 469, §§ 1–2, 1935 Tex. Gen. Laws 1846, 1846–1848. The 1935 Act and its successor provisions were codified first as article 734b in the former Penal Code, later as former article 734c, then “transferred” to former article 8451a); see also Act of May 28, 2005, 79th Leg., R.S., ch. 798, §§ 1.01, 6.01–.02, 2005 Tex. Gen. Laws 2734, 2735, 2759–2760 (adopting Chapter 1603 of the Occupations Code and repealing or amending related provisions in Chapters 1601 and 1602).

Before 1935, a statute required registration, but not licensing, of “beauty parlor” owners and operators, imposed certain health and cleanliness requirements, and set fines for statutory violations. See Act of 1921, 37th Leg., R.S., ch. 79, 1921 Tex. Gen. Laws 155, 155–158, codified in TEX. PEN. CODE arts. 728–733 (Vernon’s 1925).

8

See House Comm. on Gov’t Org., Bill Analysis, Tex. S.B. 384, 66th Leg., R.S. (1979) (“The need for regulation has primarily been based on the protection of the public health and welfare.”); House Comm. on Public Health, Bill Analysis, Tex. S.B. 127, 69th Leg., R.S. (1985) (“The need for regulation has primarily been based on the protection of the public health and welfare.”).

9

TEX. OCC. CODE § 1603.102.

10

Id. §§ 1603.103, 1603.104.

11

Id. § 51.252; see also id. § 1603.151.

12

Act of Apr. 25, 1935, 44th Leg., R.S., ch. 116, § 3(a), 1935 Tex. Gen. Laws at 304, codified as former TEX. PEN. CODE art. 734b, § 3(a) (“Any person who with hands, or mechanical or electrical apparatus or appliances, or by the use of cosmetological preparations, antiseptics, tonics, lotions or creams, engages in any one or combination of the following practices for remuneration or pay, to-wit: cleansing, beautifying, or any kindred work of the scalp, face, neck, arm, bust, or upper part of the body or manicuring the nails of any person, shall be construed to be practicing the occupation of a cosmetologist.”).

13

Id. § 1, 1935 Tex. Gen. Laws at 304, codified as former TEX. PEN. CODE art. 734b, § 1.

14

Id. §§ 9, 11(a), 1935 Tex. Gen. Laws at 306–307, codified as former TEX. PEN. CODE art. 734b, §§ 9, 11(a).

15

A depilatory is “a cosmetic for the temporary removal of undesired hair”. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 605 (2002).

16

Act of May 28, 1971, 62d Leg., R.S., ch. 1036, § 1(3)(C), 1971 Tex. Gen. Laws 3389, 3389, codified as former TEX. PEN. CODE art. 734c, § 1(3)(c).

17

Id. §§ 13–17, 1971 Tex. Gen. Laws at 3392–3394, codified as former TEX. PEN. CODE art. 734c, §§ 13–17.

18

Id.

19

Id. §§ 4(d), 13–17, 1971 Tex. Gen. Laws. at 3391–3394, codified as former TEX. PEN. CODE art. 734c §§ 4(d), 13–17.

20

See, e.g., Act of May 28, 1979, 66th Leg., R.S., ch. 606, TEX. OCC. CODE § 1602.257 and adding §§ 1602.2571, 1602.2572, and 1602.261).

21

TEX. OCC. CODE §§ 1602.254–.2572, 1602.261, amended by Act of May 22, 2015, 84th Leg., R.S., H.B. 2717, available at http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/HB02717F.pdf.

22

Act of May 28, 2005, 79th Leg., R.S., ch. 798, §§ 1.01, 6.01–.02, 2005 Tex. Gen. Laws 2734, 2735, 2759–2760 (adopting Chapter 1603 of the Occupations Code and repealing or amending related provisions in Chapters 1601 and 1602); see TEX. OCC. CODE § 1603.002.

23

TEX. OCC. CODE § 51.051(a).

24

Id. §§ 51.101, 51.103.

25

Id. § 51.051(b).

26

Id. § 51.052(a).

27

Id. § 51.053(a).

28

Khan, 2011 WL 182882, at *8.

29

Act of May 27, 2011, 82d Leg., R.S., ch. 1241, TEX. OCC. CODE § 1602.002(a)(9) to substitute “tweezing techniques” for “mechanical tweezers”).

30

37 Tex. Reg. 681, 681 (Feb. 10, 2012), codified at 16 TEX. ADMIN. CODE § 83.10(36).

31

TEX. OCC. CODE § 1602.257 (eligibility for esthetician specialty license).

32

Id. § 1602.257(a) (setting out the services that the holder of an esthetician license is authorized to perform).

33

Id. § 1602.257(b)(3).

34

Id. §§ 1602.254(a) (permitting “any practice of cosmetology”), (b)(3) (required hours).

35

16 TEX. ADMIN. CODE § 83.120(b) (esthetician curriculum).

36

Id. 1602.262(a)(2).

37

Petitioners argue that they could not do so because the examinee is required to “hold the [client’s] skin taut” while removing the hairs, and the threading technique requires two hands. But the record shows that it is nevertheless necessary that the client’s skin be held taut during threading and that the usual practice is to direct the client to hold her own skin taut during the threading process. The record does not tell us whether or not this would suffice during the examination.

38

83.105(a), (c), (e), (f).

39

Id. § 83.105(b).

40

Id. § 83.104(g).

41

Id. §§ 83.102(i), 83.104(e).

42

Id. § 83.104(c).

43

Id. § 83.111.

44

U.S. CONST. amend. V.

45

U.S. CONST. amend. XIV, § 1.

46

TEX. CONST. OF 1845, art. I, § 16.

47

Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 632 (Tex.1996).

48

198 U.S. 45, 58–59, 25 S.Ct. 539, 49 L.Ed. 937 (1905).

49

Id. at 56, 25 S.Ct. 539.

50

Id. at 75–76, 25 S.Ct. 539 (Holmes, J., dissenting).

51

See, e.g., Lochner, 198 U.S. at 58, 25 S.Ct. 539 (limitation on hours worked in a bakery is not a valid exercise of the police power).

52

United States v. Carolene Prods. Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

53

Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1876)).

54

Slaughter–House Cases, 83 U.S. (16 Wall.) 36, 74–78, 21 L.Ed. 394 (1872).

55

Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 263 & n.5 (Tex.1994).

56

State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 599–600, 602–603 (1957) (on certified questions from court of civil appeals).

57

Id. at 602.

58

925 S.W.2d 618, 631–633 (Tex.1996).

59

218 S.W.3d 60, 65 (Tex.2007) (per curiam).

60

Id.

61

964 S.W.2d 922, 938–939 (Tex.1998) (emphasis in original) (citations omitted).

62

Ante at 87.

63

As we recently observed in a different setting, “the test for determining whether something is oppressive will necessarily vary from one context to the next, and thus the term has multiple meanings, depending on the circumstances.” Ritchie v. Rupe, 443 S.W.3d 856, 867 (Tex.2014).

64

Three Lochner-era cases reference the impropriety of “arbitrary or oppressive” legislation, but not one uses the phrase as a formal test for substantive due process. Hous. & Tex. Cent. Ry. Co, 84 S.W. at 653.

65

Ante at 88.

66

24 DEL. ADMIN. CODE § 5100–14.7 (listing “threading” as an example of “hair removal” and providing that “[h]air removal shall be performed by a licensed cosmetologist or licensed aesthetician only”); W. VA. CODE § 30–27–3(a)(4) (esthetics includes “[t]he waxing, tweezing and threading of hair on another person’s body”).

67

63 PA. CONS. STAT. § 507 (cosmetology includes “the removal of superfluous hair”); S.D. CODIFIED LAWS § 36–15–2(4) (the practice of cosmetology includes “removal of superfluous hair by nonpermanent means”).

68

Like Texas, Illinois and Louisiana require applicants for a cosmetology license to complete 1,500 hours of coursework. 225 ILL. COMP. STAT. 410 / 3–2(1)(c); LA. ADMIN. CODE tit. 46 § 301. And, like Texas, they require applicants for a more limited esthetician’s license to complete 750 hours of coursework. 225 ILL. COMP. STAT. 410 / 3A–2(c); LA. ADMIN. CODE tit. 46 § 303. Delaware, Mississippi, and Oklahoma require applicants for a cosmetology license to complete 1,500 hours of coursework. 07.

69

Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968)).

70

Ante at 112 (emphasis in original).

71

Ante at 93.

72

For a recent discussion of the development of substantive due process and the fundamental rights it has been held to protect, see Joshua D. Hawley, Lochner era).

73

See, e.g., David E. Bernstein, Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract, 60 MERCER L. REV. 563, 640–642 (2008) (discussing the liberty of contract cases that were used as groundwork for the Supreme Court’s later protections of a “right to privacy”).

74

Ante at 86.

75

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

76

See State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602–603 (1957).

77

In Id. Although this burden is high, a plaintiff challenging a law on its face nevertheless has the opportunity to put on evidence that the challenged law is unconstitutional in all possible applications.

78

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 n.3, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987)).

79

We note that Texas has regulated a related practice, barbering, since 1907. Act of Apr. 18, 1907, 30th Leg., R.S., ch. 141, 1907 Tex. Gen. Laws 273. We have twice held that regulation of barbering is important to public health and safety. Gerard v. Smith, 52 S.W.2d 347, 350 (Tex.Civ.App.–El Paso 1932, writ ref’d).

80

At oral argument, the State agreed that “430 hours of the 750–hour curriculum are addressed to subject matter relevant to eyebrow threading” and explained that it “has not argued that the remaining 320 hours of instruction are [ ] necessary.”

81

I GEORGE SANTAYANA, THE LIFE OF REASON: REASON IN COMMON SENSE 284 (Charles Scribner’s Sons, 2d ed. 1929).

1

See, e.g., Op. at 138 (Hecht, C.J., dissenting) (“Judicial usurpation of authority over the State’s policies may provide protection for the economic liberties on which the concurrence waxes eloquent, but it also gives rise to such decisions as Roe v. Wade.”).

2

For the operator license, up to 500 hours of public vocational school may be credited toward the 1,500 hours. TEX. OCC. CODE § 1602.254(b)(3)(B).

3

Whether a test is “workable” is something this Court has considered before. See, e.g., Trevino v. Ortega, 969 S.W.2d 950, 956 (Tex.1998) (“The National Tank test is workable in the spoliation context; yet, it must be modified somewhat.”).

4

See, e.g., Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (noting that “the Court has consistently eschewed bright-line rules” in the Fourth Amendment context, “instead emphasizing the fact-specific nature of the reasonableness inquiry”).

5

Assuming, of course, that the record before this Court is complete. As the accompanying dissent wisely observes, “nothing of what prompted the regulation is before us. We have conducted no investigations and held no hearings. As in any case, we know what the parties have told us, and nothing more.” Op. at 131 (Hecht, C.J., dissenting).

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