Judges have long recognized that the right to earn a living in any of the common occupations is among those fundamental interests which a democratic society should protect. Justice Bradley characterized it as an "inalienable right," and Justice Douglas asserted that it is "the most precious liberty that man possesses." Indeed, Mr. Justice Field viewed protection of this right as one of the distinguishing features of our republican institutions. That the right to earn a living is generally within the protective mantle of the Fourteenth Amendment is now long settled constitutional doctrine. Writing for a unanimous court in 1915, Mr. Justice Hughes declared: "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure." The Massachusetts court has been especially vigorous in asserting the constitutional standing accorded this right. Speaking in terms reminiscent of the eighteenth century natural lawyers, it said in 1924: "Manifestly no statute by attempting to outlaw a natural right can deprive one of the opportunity to earn his livelihood. The right to labor and to do ordinary business are natural, essential, and inalienable, partaking of the nature both of personal liberty and private property."
Important as is the right to earn a livelihood, recent developments along a number of fronts have resulted in a marked curtailment of individual freedom of entry into various occupations. The developments have been multifarious. Labor unions now exert considerable control over occupational entry. There has been an increasing tendency on the part of legislatures to condition an individual's choice of gainful activities upon the consent of other private persons – the most common example being the "consent" zoning ordinance. Here I propose to focus upon still another significant control over free occupational entry: the requirement of a state license as a prerequisite to occupational practice. This license issues only to those who demonstrate a certain minimum proficiency, and, of course, the imposition of a licensing system upon an occupational activity automatically involves the rejection of any unlimited occupational entry notions. The Massachusetts statutes and decisions will be used as a convenient illustration of the considerations involved in this process.
Henry P. Monaghan,
The Constitution and Occupational Licensing in Massachusetts,
B. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/800