July 1, 2011

A group of Maryland children recently got an unexpected civics lesson when they set up a lemonade stand outside the U.S. Open to raise money for pediatric cancer research. Maryland County officials shut down the stand and issued a $500 fine, which was later nullified, but the message delivered was simple: America is the land of the “opportunity” to seek permission from a bureaucrat before trying to do something good for your community.

The blame for this situation rests not with the county government but with a judiciary that has practically stopped enforcing constitutional limits on government power in the economic sphere.

Much of America is ruled by regulatory agencies that place onerous restraints on how people can live in and contribute to their communities. Setting up a lemonade stand and donating the profits to charity exhibit exactly the kind of spunk, good citizenship and entrepreneurial spirit that our society should nurture. Instead, youthful initiative is stonewalled by bureaucrats who treat even lemonade stands as a public enemy.

My first lessons in business and salesmanship were learned in Cub Scouts, where we sold lemonade, popcorn, baked goods — anything that would sell. The parents supervising such activities shouldn’t be expected to be legal experts on the myriad regulations at the city, county and state levels.

If the Montgomery County children took the government to court to defend their economic liberty, a judge would require them to counter every conceivable justification for the county’s regulation, including purely hypothetical ones. In practice that burden of proof is very hard to meet. Essentially, the courts have decided that some constitutional rights, such as the right to earn an honest living, are so trivial as to warrant little meaningful judicial protection against government encroachment.

Apologists for the regulatory state believe that tight regulations on every potentially harmful activity — regardless of how unlikely the harm — are justified to prevent accidental death, disease or consumer fraud. But genuine threats to public safety can be addressed without requiring children to obtain a license and liability insurance before squeezing a single lemon. Courts could instead take economic liberty seriously and overturn burdensome restrictions that have no plausible basis in reality. Regulators should be required to justify their encroachments on citizens’ liberties — not the other way around. But for this to happen, judges would have to become more engaged in deciding constitutional cases instead of deferring reflexively to the supposed wisdom of legislators and regulators.

A nation of entrepreneurs like ours needs an engaged judiciary that will consider the purposes of laws, weigh the facts instead of hypothesizing them, and overturn as unconstitutional laws that infringe on vital liberties such as the right to earn an honest living — or the right for children to operate a simple lemonade stand.

Jason Orr, Arlington

The writer is a communications associate at the Institute for Justice, a public-interest law firm.