The Center for Law and Freedom's three-part series on the constitutionality of microbrewery restrictions is now available in its entirety at the NCcivitas.org. Part 1 provides a historical backdrop to help readers understand why our judicial system is one in which courts defer to the will of the legislature:
Federal and state governments, free from the shackles of the early 20th century’s laissez-faire jurisprudence, regulate nearly every aspect of our economy. North Carolina alone has dozens of licensing boards that regulate trades from “animal breeder” to “cement finishing contractor” to “skin care specialist.” Despite consistent arguments by libertarians and conservatives that such economic regulation often produces few benefits for society while explicitly benefitting certain businesses over others, the courts have been effectively neutered in the realm of economic regulation. Challenging such laws as unconstitutional has become nearly impossible, notwithstanding rare outliers such as a line of cases striking down bans of unlicensed funeral casket production and another vindicating the economic rights of hair braiders.
All that matters, in a world of Progressive Era economic regulation, is that the legislature has proclaimed ostensibly legitimate policy ends. Business interests are free to advocate for laws that line their pockets at the expense of others, so long as some legitimate policy goal can be imagined. In other words, lobbying and economic protectionism are features, not kinks, of the progressive constitutional system in which the legislature reigns supreme. In the 21st Century world of watered-down judicial review, North Carolina’s microbreweries are left with no recourse from the courts. Or are they?
Perhaps, if microbreweries advance a legitimate argument under the North Carolina Constitution that they are being deprived of their rights, courts will listen, and develop a legal test that maintains deferrence to the legislature while increasing protections for economic liberties. After all, constitutions exist to protect our most fundamental freedoms from our own government. When entrenched business interests with the capacity to lobby are using the law to protect their profits at the expense of emerging small businesses, it would seem that there must be a constitutional remedy. Perhaps in the future our state courts will have the opportunity to decide whether, and how, our state’s constitution can protect a flourishing new industry from the influence of economic incumbents in Raleigh.
Check out the whole series, and send us your thoughts at CLF@nccivitas.org!