Monday, July 25, 2011

Cemetery Law: In Praise of the Institute for Justice

It's really easy to caricature the Institute for Justice for its overly evangelical position on the Takings Clause.  Far too often, its lawyers confuse the stupid with the unconstitutional (see e.g., Kelo).

Yet, no matter what you think of the Fifth Amendment, the folks at the Institute deserve high praise for their legal battles against arbitrary licensing and permitting schemes.  In many industries, insiders have erected remarkably arbitrary entry barriers that make it difficult for people of modest means to earn a living.  Why, for example, does anyone need a license to become a barber, hair braider, florist, tour guide, manicurist, or frozen-dessert seller?  Florida won't let you work as an interior designer unless you finish a four-year degree and a two-year apprenticeship. Such schemes put a boot on the neck of low-income entrepreneurs - the very population that could lead a revival of depressed inner-city areas.

Well, here's a wonderful article about a major victory that the IJ has won in the name of economic liberty.  In short, a group of monks in Covington, Louisiana started making well-made (and cheap!) wooden coffins to support their abbey.  This simple business violated all kinds of state regulations (and really pissed off the state's funeral home cartel).  For the monks to sell their coffins, someone in the abbey would have needed to get licensed as a funeral director and serve an year-long apprenticeship.  Moreover, the monks would then have needed to convert their monastery into a "funeral establishment," a label that would require a layout parlor for 30 people, a display room for six caskets, and body embalming equipment.

The monks thought all these regulations were excessive, since all they wanted to do was sell wooden boxes.  With the help of the IJ, they sued, claiming that the permitting scheme failed rational basis review.   The 5th Circuit agreed.  If we care about cities and the urban poor, this kind of case needs more standing ovations.  I for one, look forward to riding in unregulated jitney cabs and getting $5 dollar hair cuts in the back of someone's truck.

Steve Clowney

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