Tammy M. Eick
“Invention, my dear friends, is ninety-three percent perspiration, six percent electricity, four percent evaporation, and two percent butterscotch ripple.”[ii]
There is something uniquely captivating about the original film, Willy Wonka and the Chocolate Factory, that touches the heart and spirit, regardless of age.[iii] In 2014, the film was named a cinematic treasure to be preserved for all time in the Library of Congress for its significance in American culture.[iv] Throughout the film we learn that if there was one thing Willy Wonka valued above all else, it was the limitless belief he had in the capacity of his imagination.[v] Entrepreneurs are likewise driven by some unknown force of relentless hope and optimism.[vi]
Having the freedom to choose how one builds their life financially has long been a value weaved into the quiltwork of the American dream.[vii] This is fundamentally true for those born with an entrepreneurial spirit.[viii] As the creator of a confectionary enterprise, and as a staunch advocate for inspirational innovation, Willy Wonka is much like a fictional embodiment of the entrepreneurial spirit itself.[ix] According to the Forbes Fictional 15, Wonka’s portfolio valued against “real-world commodity and share prices” puts his net worth somewhere in the neighborhood of $2.3 billion—not bad, for a candy man.[x] However, the regulatory realities faced by entrepreneurs in America today would likely paint a much different picture for this confectionary mogul.[xi]
The rapidly diminishing cost of information on a global scale is fundamentally changing how developed countries operate.[xii] This tech-driven phenomenon, in turn, has given rise to a surge in market competition, which is “quickly separating winners from losers” in almost every industry.[xiii] According to finance experts, “[t]he spoils are going to the boldest innovators.”[xiv] To survive, industry leaders are uprooting long-established business models, to rebuild, fostering one thing above all: Innovation—not just break through innovation, but continuous innovation.[xv]
Many believe that America is falling behind in this New Age of Innovation.[xvi] For the ninth time since 2008 the United States has dropped on the Heritage Foundation’s global index of economic freedom.[xvii] A 2017 survey conducted by the National Small Business Association revealed that small businesses are paying an average of $12,000 each year just to remain in good standing with government regulators.[xviii] The regulatory start-up costs for new business is almost seven times that, at the staggering cost of $83,019. [xix] Regulatory burdens faced by entrepreneurs are made worse by decades of unchecked administrative overgrowth, which has led “to duplicative, obsolete, conflicting, and even contradictory” regulatory rules.[xx] Many of these economic regulations beg the question of what—if any—legitimate public health and safety interest could possibly be advanced to justify such restrictions on economic liberty.[xxi] As the Federal Trade Commission’s acting chairwoman, Maureen Ohlhausen, acknowledged, “[o]ccupational licensing stands out as a particularly egregious example of this erosion in economic liberty.”[xxii] Ohlhausen goes on to point out that: “Consumers can, and do, easily evaluate the quality of interior designers, make-up artists, hair-braiders, and others. I challenge anyone to explain why the state has a legitimate interest in protecting the public from rogue interior designers carpet-bombing living rooms with ugly throw pillows.”[xxiii]
But, despite the growing number of Americans facing hard economic times, and public dissatisfaction with government on the rise, for nearly the past century, the Supreme Court of the United States has continued to pass the ball on virtually every opportunity before it to strike down arbitrary economic regulations.[xxiv] The historical origins for this deferential jurisprudence dates back to 1905, when the Supreme Court issued one of its most notorious rulings in Lochner v. New.[xxv] It was in Lochner that the Court made the unprecedented declaration that the right to contract was an “individual liberty protected by the [Fourteenth] Amendment of the [United States] Constitution,” irrespective of its lack of textual support in the Constitution itself.[xxvi] For decades the conventional narrative has been that the Lochner ruling “was [so] obviously and irredeemably wrong.”[xxvii] Lochner has been, and continues to be, the poster-child of judicial activism—that is, the “illegitimate intrusion by the courts into a realm properly reserved to the political branches of government.”[xxviii]
Despite the overwhelming consensus among legal scholars, judges, and politicians alike regarding Lochner’s disfavored status, the reason for why Lochner was wrong is still largely a matter of unsettled debate.[xxix] Unlike many of the non-textual privacy rights currently protected by the Court—such as reproduction and marriage—economic liberties continue to be rejected as non-textual rights under the Constitution.[xxx] As Professor Richard Levy argues, this logical bias by the Court presents a problem because it “never fully explained why some [non-textual] rights are entitled to special protection,” while others are not.[xxxi]
This Comment argues that just as contemporary constitutional jurisprudence finds justification for non-textual privacy rights in the Bill of Rights, it can—and should—likewise extend that logic to non-textual economic rights in not only the Bill of Rights, but also in the Declaration of Independence.[xxxii] Within the very text of the Declaration it leaves no doubt, “that all men are created equal, [and] that they are endowed by their Creator with certain unalienable Rights.”[xxxiii] These fundamental rights “did not simply come from a piece of paper,” but, rather, emanate from the natural rights inherent in us—rights that existed before government.[xxxiv] It is only by the People’s consent to be governed that empowers governments to regulate.[xxxv] This is the social contract between the People and their government—that only for the necessary purpose of protecting these unalienable rights is the government authorized to restrict economic liberty.[xxxvi]
As America marches ever forward into the New Age of Innovation, will the Supreme Court continue to pay obedient deference to the Regulatory Leviathan?[xxxvii] Or, will it appeal to a higher law, in the spirit of the Founding Fathers, to right the scales of democracy?[xxxviii] One hopes for the latter.
[i]. Leslie Bricusse & Anthony Newley, Pure Imagination, on Willy Wonka & the Chocolate Factory”: Musical from the Original Soundtrack of the Paramount Picture (Paramount Records 1971).
[ii]. See Willy Wonka & the Chocolate Factory (Warner Bros. Pictures 1999) (1971).
[iii]. See Casey Robinson, Born to Be Wild(er): The Willy Wonka Effect, Fordham Observer (Sept. 29, 2016), http://www.fordhamobserver.com/born-to-be-wilder-the-willy-wonka-effect/.
[iv]. Cinematic Treasures Named to National Film Registry, Libr. Congress (Dec. 17, 2014), https://www.loc.gov/item/prn-14-210/.
[v]. Zach Heller, Willy Wonka Is a Marketing Genius, Be Innovation Blog (June 3, 2009 12:10 PM), https://zachheller.com/2009/06/03/willy-wonka-is-a-marketing-genius/.
[vi]. See Casey Robinson, Born to Be Wild(er): The Willy Wonka Effect, Fordham Observer (Sept. 29, 2016), http://www.fordhamobserver.com/born-to-be-wilder-the-willy-wonka-effect/.
[vii]. See Felix Livingston, The Entrepreneur as a Defender of Liberty, Fund. Econ. Ed. (Sept. 1, 1996), http://fee.org/article/the-entrepreneur-as-a-defender-of-liberty/.
[ix]. See Steve Struss, Willy Wonka, Entrepreneur Extraordinaire, USA Today: Money (Sept. 2, 2016, 4:29 PM), https://www.usatoday.com/story/money/columnist/strauss/2016/09/02/willy-wonka-entrepreneur-extraordinaire/89780100/.
[x]. See The Forbes Fictional 15, #10 Wonka, Willy, Forbes: Lists, https://www.forbes.com/lists/2005/fictional/10.html (last visited July 27, 2017); David M. Ewat, The 2013 Forbes Fictional 15, Forbes (Jul. 31, 2013 12:29 PM), https://www.forbes.com/sites/davidewalt/2013/07/31/the-2013-forbes-fictional-15/#2430dc767ff5; Willy Wonka & the Chocolate Factory, supra note 2.
[xi]. See infra Note
[xii]. See Julian Birkinshaw, Beyond the Information Age, Wired, https://www.wired.com/insights/2014/06/beyond-information-age/ (last visited July 24, 2017).
[xiii]. Alex Kazaks et al., The Age of Innovation, McKinsey & Co. (March 2017), http://www.mckinsey.com/industries/financial-services/our-insights/the-age-of-innovation.
[xv]. See C.K. Prahalad & M.S. Krishnan, The New Age of Innovation 11 (2008).
[xvi]. Id.; Birkenshaw supra, note 12.
[xvii]. See infra Section II.B.3.
[xviii]. 2017 NSBA Small Business Regulations Survey (Nat’l Small Bus. Ass’n, Washington, D.C.), Jan. 2017, at 2.
[xix]. Id. at 9.
[xx]. See The Cumulative Cost of Regulations, Res. Summary (Mercatus Ctr. Geo. Mason U., Arlington, Va.).
[xxi]. Maureen K. Ohlhausen, Acting Chairman, Fed. Trade Comm’n, Remarks at the George Mason Law Review’s 20th Annual Antitrust Symposium: Advancing Economic Liberty 1, 2 (Feb. 23, 2017)
[xxii]. Id. (emphasis added).
[xxiv]. See Richard E. Levy, Escaping Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. Rev. 329, 334-40 (1995).
[xxv]. 198 U.S. 45 (1905); Thomas B. Colby & Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527, 528, 533, 535 (2015).
[xxvi]. Lochner, 198 U.S. at 53.
[xxvii]. See Colby & Smith, supra note 25, at 528.
[xxviii]. Id. at 535; Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 874 (1987).
[xxix]. See Colby & Smith, supra note 25, at 529, 540.
[xxx]. Id. at 334; Richard E. Levy, Escaping Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. Rev. 329, 334 (1995).
[xxxi]. See Levy, supra note 30, at 362.
[xxxii]. See infra Notes 33-36.
[xxxiii]. The Declaration of Independence para. 2 (U.S. 1776).
[xxxiv]. See Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 Harv. J.L. Pub. Pol’y 63 (1989).
[xxxvii]. See Birkinshaw, supra note 12; Livingston, supra note 7.
[xxxviii]. See Thomas, supra note 34, at 63; Livingston, surpa note 7.