Right to pursue ones profession a fundamental right?

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ftblryan
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Right to pursue ones profession a fundamental right?

Postby ftblryan » Sun May 01, 2011 6:44 pm

I'm getting conflicting answers for this. Can a person sue under 5th or 14th amendments if a state or fed is regulating such that they cannot or find it very difficult to pursue their career? I was under the impression that economic regulation, e.g. license fees, etc. are not infringing upon fundamental rights. I'm wondering if only a complete bar to a profession, i.e. people in State X cannot be butchers, is a fundamental right and fees and other ways of restricting certain types of employment, i.e. butchers must take and pay for a test to qualify, are not. Heres a hypo:

KY enacts legislation that states that all plumbers in the state must pay a $1,000 dollar licensing fee. Can a KY plumber bring suit under the 14th amendment saying that his fundamental right to pursue his career is infringed upon and thus the law must meet strict scrutiny or is it only rational basis? Also can a NY plumber that does business in KY bring suit under the 14th amendment or should they bring it under the Privileges and Immunities clause, and if its the later what basis of scrutiny will the court use? Thanks

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Mroberts3
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Re: Right to pursue ones profession a fundamental right?

Postby Mroberts3 » Sun May 01, 2011 7:00 pm

After Lochner I'm pretty sure that this is all rational basis review. The court will uphold any regulation that has some basis. I can imagine situations that just goes way too far, but it would have to be extreme (like if the government made being a doctor illegal or made doctors pass a marine corps physical fitness test on the rationale that they had to be role models of fitness).

Think of it this way: is a hooker's right to pursue her (or his) profession infringed?

Even for jobs that are not potentially suspect (like plumbers), the state has plenty of good reasons for regulating in certain ways.

ftblryan
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Re: Right to pursue ones profession a fundamental right?

Postby ftblryan » Sun May 01, 2011 7:17 pm

OK thanks, so just to clarify: the right to ones profession is not a fundamental right under the 14th amendment? My teacher loves to test on state regulations and make it unduly hard for people to work in a certain area so just trying to get it right :D Also, to the second part of my question, what if the NY plumber brings suit against KY under the priv. and immun. clause. What basis for review does he get? Thanks

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Mroberts3
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Re: Right to pursue ones profession a fundamental right?

Postby Mroberts3 » Sun May 01, 2011 11:39 pm

ftblryan wrote:OK thanks, so just to clarify: the right to ones profession is not a fundamental right under the 14th amendment? My teacher loves to test on state regulations and make it unduly hard for people to work in a certain area so just trying to get it right :D Also, to the second part of my question, what if the NY plumber brings suit against KY under the priv. and immun. clause. What basis for review does he get? Thanks


Well I would think rational basis, but its somewhat irrelevant because the priv and immun clause has basically been rendered moot by slaughterhouse cases (unless im misunderstanding part of the question).

Renzo
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Re: Right to pursue ones profession a fundamental right?

Postby Renzo » Fri May 06, 2011 9:29 pm

G. T. L. Rev. wrote:I don't recall the exact rules on this, but I recall that there is no right to pursue one's chosen profession, much less a "fundamental" one -- at least post-Lochner. The Slaughter House Cases may shed some light on how this works under the 14th Amendment.



You're right that the slaughterhouse cases are on point, but the rule comes from Corfield v. Coryell which said that pursuing a trade is a "privilege or immunity" under article IV, and Paul v. Virginia which said that these privileges and immunities are not fundamental rights. The Slaughtehouse cases just reiterated that the "privileges or immunities" clause is distinct from the "privileges and immunities" that are fundamental rights under the 14th A.




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