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The Supreme Court on Oct. 2 spurned an opportunity to correct the second-worst mistake in its 233-year history. If it had agreed to hear Ursula Newell-Davis's case, and had then decided it correctly, the court would have scrubbed a 150-year-old stain from its reputation.
And it would have ended the injustice being done to Newell-Davis and those whom Louisiana's government is, for its convenience, preventing her from serving. Instead, the court, which is currently accused of insufficient fidelity to precedents, has preserved one that enables government-inflicted abridgments of individuals' rights.
The court's worst mistake was Dred Scott v. Sandford (1857), holding that Black people have no rights that white people are bound to respect. The Civil War made possible, in 1868, the 14th Amendment, which says no state shall abridge any American's "privileges or immunities."
These included those secured by the Bill of Rights, the 1866 Civil Rights Act and other unenumerated rights derived from the common law and acknowledged by the Ninth Amendment. In 1873, however, the "privileges or immunities" provision was all but nullified by a Supreme Court decision preserving a Louisiana government-created monopoly.
Some Louisiana butchers contested the monopoly conferred by their state on a single slaughterhouse, saying this abridged their right to earn a living.
The court, however, held that "privileges or immunities" refers merely to a few narrow and obscure federal rights (e.g., protection on the high seas).
Newell-Davis, a New Orleans social worker with undergraduate and master's degrees in social work and more than two decades of experience, wants to provide respite child-care services to parents who have special-needs children. But Louisiana's Health Department requires a "Facility Need Review," which evaluates not a caregiver's competence but four bureaucrats' determination that the community needs the caregiver's services.
Because the court long ago eviscerated the straightforward "privileges or immunities" clause, occupational-licensing laws have been combated, awkwardly and without sufficient success, as violations of "substantive due process." The theory is that the adjective "due" modifies the noun "process."
In its unsuccessful (but unanswerable) petition urging the court to hear Newell-Davis's case, the Pacific Legal Foundation skewered Louisiana's nonsense: Under Louisiana's reasoning, government could economize election resources by having fewer polling places. It could enhance the administrative ease of education bureaucracies by educating fewer children. Louisiana's argument, the petition said, is that "the Department can deprive people of constitutional rights because doing so allows it to oversee fewer people exercising their constitutional rights."
The court, deferring to its own blunders, chose to preserve a precedent that prevents robust responses to abuses such as Louisiana's abridgment of Newell-Davis's rights. The court should have remembered James Madison's admonition in 1792 that it is "not a just government … where arbitrary restrictions, exemptions and monopolies deny to part of its citizens (the) free use of their faculties, and free choice of their occupations."