AB 257 abridges business freedoms in California

The Constitution would like a word with California.

Economic liberty is no doubt disfavored in our age of price controls and onerous regulations.

California’s FAST Recovery Act (Assembly Bill 257) is just par for the course.

Signed into law earlier this month, it tasks a 10-member state council with setting minimum wage, benefits and working conditions for select fast-food industry workers.

Favored restaurants, however — bakeries and smaller chains — get off scot free, the Legislature having immunized them from the council’s regulatory onslaught.

“This is a clear example of picking ‘winners’ and ‘losers,’” charged Joe Erlinger, president of McDonald’s USA, and “the outcome of backdoor politicking.”

As it turns out, the Constitution’s Privileges or Immunities Clause vindicates Erlinger. But don’t expect the courts to save the day.

After a bloody Civil War fought to secure the liberty of Black Americans, our federal government made a majestic guarantee: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the 1873 Slaughter-House Cases, the Supreme Court shattered this promise, advancing the farcical notion that it protected only a narrow confine of “national” rights the Constitution already ensured.

The irony was not lost on Justice Stephen Johnson Field, who, in dissent, reproached the court for rendering the provision “a vain and idle enactment.” His reading of the Privileges or Immunities Clause would prohibit baseless economic discrimination, for among the freedoms of American citizens is “the right to pursue a lawful employment in a lawful manner, without other restraint than as such equally affects all persons.”

There is strong historical evidence to bolster Justice Field’s interpretation. In the 1823 case of Corfield v. Coryell, Justice Bushrod Washington — the nephew of our first president — advanced the same expansive reading of “privileges and immunities,” identifying among them the right “to pursue and obtain happiness and safety,” subject only to “such restraints as the Government may justly prescribe for the general good of the whole.”

By placing only select restaurants and their employees at the mercy of onerous regulation, California’s FAST Recovery Act flagrantly offends this basic right of American citizenship. Why must McDonald’s and Chipotle suffer under the heel of a powerful regulatory commission, while Panera enjoys the liberty of the free market?

Why should restaurant chains with 100 locations nationwide reap the profits of laissez-faire capitalism, while the state clips the wings of chains with 101? Apparently it’s because the Golden State simply fancies some businesses over others.

Class legislation of this sort, without any rhyme or reason to justify the disparate treatment, is clearly inconsistent with a proper antidiscrimination reading of the Privileges or Immunities Clause.

In the 2010 case of McDonald v. City of Chicago, the Supreme Court expressly declined to revisit Slaughter-House and revive this majestic promise from its untimely demise.

It was as wrong then as it was in 1873.

The court owes it to the American people to fulfill the liberties our government has guaranteed, lest — to borrow the words of Sen. Huey Long  — our Constitution become “ancient and forgotten lore.”

Slaughter-House must be swept into the dustbin of history and the economic privileges of American citizenship reinvigorated.

Charles Brandt is a law student at The George Washington University Law School.