Joshua Windham (Institute for Justice) has posted The Right to Earn a Living in Pennsylvania on SSRN. Here is the abstract:
Article I, Section 1 of the Pennsylvania Constitution protects certain “inherent and indefeasible rights,” including the rights to “enjoy[] and defend[] life and liberty,” to “acquir[e], possess[], and protect[] property,” and to pursue their own happiness. The Pennsylvania Supreme Court has long held that this text secures the right to earn a living. Yet the Court has also treated the right to earn a living as non-fundamental and has faced recurring calls, particularly from Justice David Wecht, to abandon the heightened rational basis test from Gambone v. Commonwealth in favor of the federal “conceivable basis” test. This article argues that, if the Court must choose between Gambone and a conceivability test, Gambone is more faithful to Section 1’s text and historical origins in Pennsylvania’s 1776 Declaration of Rights. When Section 1 was first adopted, Pennsylvanians would have understood it to secure a natural right—in the Lockean sense—to engage in productive labor and to trade the fruits of that labor with others. Because the right to earn a living is fundamental under Section 1, Gambone’s heightened rational basis test is better suited to securing it than the federal conceivability test.
Lawrence Solum