In today's Golden Glow Tanning Salon v. City of Columbus, the Fifth Circuit, in an opinion by Judge Edith Jones, joined by Judges James Ho and Cory Wilson, rejected an Equal Protection Clause and Takings Clause challenge to COVID lockdowns. This is a straightforward, and in my view a clearly correct, result under existing law; but Judge Ho had an interesting concurrence (which cited, among others, our own David Bernstein and Eugene Kontorovich):
The Supreme Court has recognized a number of fundamental rights that do not appear in the text of the Constitution. But the right to earn a living is not one of them—despite its deep roots in our Nation's history and tradition. Governing precedent thus requires us to rule against the countless small businesses, like Plaintiff here, crippled by shutdown mandates imposed by public officials in response to the COVID-19 pandemic. Cases like this nevertheless raise the question: If we're going to recognize various unenumerated rights as fundamental, why not the right to earn a living? …
A principled approach to the Constitution can take one of two forms: We can enforce only those rights that are expressly enumerated in the Constitution. Or we can recognize a broader range of fundamental rights, including those not expressly stated in the Constitution, by appealing to some principle not explicit in the text.
The Supreme Court has taken the latter approach. It has long said that it will recognize "those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." …
Under the Court's approach to unenumerated rights, we privilege a broad swath of non-economic human activities, while leaving economic activities out in the cold. Scholars have suggested, however, that this may get things backwards. After all, if anything, "the right to pursue callings and make contracts … have better historical grounding than more recent claims of right that have found judicial favor."
