The recent death of Chip Mellor, former president of the Institute for Justice, made me think about caskets, but not for the reason you might expect. Mellor, who cofounded that public interest law firm with Clint Bolick in 1991, was instrumental in successfully challenging Tennessee's blatantly protectionist restrictions on sales of "funeral merchandise."
That case exemplified Mellor's commitment to defending economic freedom, a vital cause that sets IJ apart from left-leaning civil liberties groups. For more than three decades, the organization's eclectic agenda, which also includes freedom of speech, private property and educational choice, has been an inspiring model of what strategic litigation can accomplish for ordinary Americans confronted by an overweening state.
In the Tennessee case, Mellor represented two businesses that objected to a state requirement that casket sellers qualify as "funeral directors," which entailed completing two years of mostly irrelevant training and passing an equally gratuitous exam. Among other things, Mellor argued that the requirement violated the 14th Amendment's guarantee of each citizen's "privileges or immunities," which historically were understood to include the right to earn an honest living.
The U.S. Court of Appeals for the 6th Circuit did not accept that argument. But in 2002, it ruled that Tennessee's law, which served to protect the funeral industry from competitors offering lower prices, was so nonsensical that it did not pass even the highly deferential "rational basis" test, which applies to equal protection and due process claims unless they involve "suspect" categories or "fundamental" rights.
That decision was not everything Mellor sought. It nevertheless was an important development because the 6th Circuit recognized that "simple economic protectionism" is not a valid justification for government regulation.
IJ has successfully opposed other anticompetitive rules that unreasonably interfere with economic activity, including restrictions on hair braiding and low-cost transportation. More generally, it has urged reform of onerous and irrational occupational licensing requirements that create obstacles to upward mobility without any countervailing public safety or health benefit -- a cause that has attracted support from allies across the political spectrum.
IJ's defense of economic liberty frequently overlaps with its defense of free speech, as with its challenges to restrictions on commercial signs, teletherapy, legal advice and guided tours. Its First Amendment work also includes representing victims of retaliatory arrests, such as an Ohio man who was charged with "terrorizing" based on a Facebook joke, a Texas city council member whose political opponents engineered her arrest for "tampering with governmental records," and a Missouri man who was arrested for daring to argue with a police officer.
In defending private property, IJ likewise helps overmatched victims of government abuse, such as innocent people whose homes were wrecked by SWAT teams, a Florida woman who was hit with $165,000 in fines for three minor code violations, and travelers peremptorily robbed of their cash under civil forfeiture laws. IJ has played a leading role in fighting that last sort of abuse by publicizing outrageous seizures, recovering people's property, and advocating reform of laws that give police a financial motive to allege that anything valuable they come across is tainted by criminal activity.
Although educational choice is usually viewed as a conservative cause, it is fundamentally a struggle against a status quo that leaves students stuck in failing schools because of their geographic or economic circumstances. "At its heart," IJ says, "educational choice is simply the idea that all parents, regardless of means, should enjoy the freedom to choose where and how their children are educated."
Mellor's legacy, in short, is an organization that challenges people to rethink what it means to defend civil liberties, promote freedom and help the disadvantaged. It shows that economic liberty and private property, often portrayed as code words for shoring up the privileges of the wealthy, are especially important for people of modest means, who otherwise are at the mercy of a government that can stop them from improving their lives and keeping what is theirs.
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