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Cruising for a showdown

| Thursday, March 29, 2012

NASHVILLE, Tenn.

Ali Bokhari, now 39, emigrated from Pakistan in 2000 and settled here as a taxi driver. He soon had an idea: "I can build a better business model for something Nashville has been missing." He built it and now knows that no good deed goes unpunished by today's political model -- collusion between entrenched businesses and compliant government.

Bokhari bought a Lincoln sedan and began offering cut-rate rides -- an average of $25 -- to and from the airport, around downtown, and in neighborhoods not well served by taxis. He now has 20 cars and 15 independent contractors with their own cars. He also has some enemies, including the established taxi and sedan companies, and a city government devoted to protecting the strong by preserving the status quo.

With the quiet support of the taxi companies, limo companies got regulators to mandate a $45 minimum charge for any ride. Then government limited the age of cars and number of miles on them and forbade dispatches from cellphones, which is how startup limo companies operate.

Represented by the Austin, Texas, office of the Institute for Justice, the nation's only libertarian public interest law firm, Bokhari is seeking judicial recognition of his constitutional right to economic liberty. Since the New Deal, courts have distinguished between economic and noneconomic liberty. Giving the latter scant protection, courts have permitted any government infringement of it that can be said to have a "rational basis." This absurdly permissive test has produced a charade of judging.

The Constitution, especially the 14th Amendment, is supposed to protect the individual's liberty, including economic liberty, from government's depredations. One purpose of that amendment's protection of "the privileges or immunities" of American citizenship was to defend the economic liberties of freed slaves from laws restricting entry into trades and businesses. But the amendment protects all the "privileges or immunities" of all Americans.

In 1873, in a 5-4 decision in the Slaughterhouse Cases, the Supreme Court construed "privileges or immunities" so narrowly as to make it a nullity. Now Bokhari may help catalyze a reconsideration of the constitutional basis of economic liberty.

In 2002, the 6th U.S. Circuit Court of Appeals struck down a Tennessee law that prohibited anyone without a license from selling caskets. The court said the law did nothing to protect the public and merely shielded licensed funeral directors from competition. This victory was achieved by the Institute for Justice.

In 2004, however, the 10th Circuit upheld an Oklahoma law requiring online casket retailers to have funeral director's licenses. The court did not dispute that this is protectionism for funeral directors, but breezily wrote that "dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments."

The 10th Circuit is right about the practice but is disgracefully tolerant of treating economic liberty as a plaything of politicians. The 6th Circuit is correct that government acts illegitimately when it abets the use of laws to transfer wealth from the disfavored to the favored. The Supreme Court, which is supposed to resolve such contradictions among the circuits, should seize the opportunity to correct a 139-year-old error.

Fortunately, immigrants such as Bokhari often remind this nation of the principles that drew them here. Unfortunately, the nation often needs reminding.

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