Economic Liberty in a World of Pure Imagination: A Theoretical Analysis of Willy Wonka, Natural Rights, and The New Age of Innovation
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/.
[viii]. Id.
[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.
[xiv]. Id.
[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).
[xxiii]. Id.
[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).
[xxxv]. Id.
[xxxvi]. Id.
[xxxvii]. See Birkinshaw, supra note
12; Livingston, supra note 7.
[xxxviii]. See Thomas, supra note
34, at 63; Livingston, surpa note 7.
