The Right To Earn a Living In Texas

The Right To Earn a Living In Texas

What does it mean to have the right to earn a living?  In the simplest of terms, the right to earn a living means that people should be free to acquire income in ways that make them happy, allowing them to use their own gifts and talents, absent unreasonable interference from outside actors.  While this would appear to an uncontroversial, and even trite, statement, there are many factors and actors that conspire to deny Texans their natural right to earn an honest living.  Some of these factors include the ever increasing scope of licensing requirements, onerous regulations, and in some cases outright instances of rent-seeking and protectionist behavior.

The right to earn a living, and provide for one’s family is a foundational right in anything resembling a free society.  Being free from unreasonable searches and seizures of one’s property means very little if there are limited opportunities to earn an honest living, and therefore be able to acquire property in a legal manner.  While there are definite arguments to have some fields or careers be subject to licensing requirements, many fields are subject to licensing requirements that are simply unreasonable, overly specific, and the harms that can be alleged to arise from keeping these careers unregulated can very often be dealt with through existing legal channels, and thus do not require licensing or regulation.

Letting people be free to use their talents, and their individual knowledge and skills, to pursue their own ends is an easy way to ensure prosperity for more Texans, particularly the less well off.   This also has the virtue of being in line with the founding vision of the United States, namely a natural rights framework.

This paper will first explore the pursuit of happiness, and its relation to the right to earn a living, before addressing the state of occupational licensing in the state of Texas as it relates to barbers, some of the objections to freedom, and then a discussion of natural rights in brief.

The Pursuit of Happiness

The Declaration of Independence declares that, in addition to being created equal, all men are endowed with certain rights that are inalienable, and that some of these rights are “life, liberty and the pursuit of happiness.”[1]  “Life” is relatively self explanatory, upon being born, people should be free to go about living and not be subject to acts of violence, discriminate or otherwise, that could take their lives away.  So too is “liberty” fairly obvious in its meaning.  Free people should be at liberty to go about their lives and business in ways that do not adversely interfere with other people’s exercise of their right to liberty.  One man’s right to be free to create trebuchets in his spare time does not imply that he is free to launch 200 pound projectiles with reckless abandon throughout his neighborhood.  The foundation of liberty is reciprocity.   But what does the phrase “the pursuit of happiness” mean?  The meaning of this term in the Declaration is not quite as clear, or at the very least not as readily apparent.

Quite simply, the pursuit of happiness entails the ability for free people to pursue their own happiness in ways that do not harm others.  In some sense, the pursuit of happiness dovetails with liberty in a similar way to how liberty is a corollary to life.  This is, in many ways, one of the under appreciated virtues of the classical liberal tradition, the interrelated of key concepts.  One facet necessarily follows from the other.

What follows from this is that if people have a right to pursue happiness, they necessarily have a right to earn a living.  After all, being free to pursue happiness means little if the ability to acquire the means by which happiness is acquired are curtailed or restricted.  The ability to earn an honest living, free from unreasonable interference, is key to being a productive and responsible citizen.  Being free to earn a living in a manner of one’s choosing allows people to unleash their own creativity, provide for themselves and their families, and contribute to society.  It is through the unleashing of human creativity, ingenuity and drive, that society grows, advances prosperity, and creates wealth and opportunity.

However, far too frequently, there are barriers to entry that are erected and placed in the way of either new entrepreneurs, or in the way of people who want nothing more than to earn an honest living.  The explosion in licensing requirements for many jobs over the last few decades has meant that for more and more Americans and Texans, starting a business, or even getting a job, is no simple matter.  What should be a simple matter of creating a business plan, developing a product or service, and gathering investors, now requires tests, certifications, licenses, inspections, fees, and permits.  This is counterintuitive, given that to the general population, when the topic of licensing is raised, it is usually in relation to doctors, CPAs, engineers, lawyers, and similar professions, not barbers, cosmetologists, polygraph examiners, or combative sports instructors.  This disconnect between the career fields that are commonly associated with licensing, and the ones that are increasingly subject to licensing requirements, is illustrative of the the mission creep and the growth of licensing.

In 1950, fewer than 5 percent of American workers required a state sponsored license in order to practice a trade.  Today, that figure, when federal licensing regimes are factored into the equation, now approaches 30 percent.[2]  This is not to say that in years past, there were no means of recognizing that a particular person was a fully qualified practitioner of their chosen trade.  There were, and indeed still are, many private trade/apprenticeship programs in careers and trades from luthiery, carpentry, welding, and most of the skilled trades.  Many programs of this sort confer what amounts to a license, or at least a certificate that demonstrates the individual has attained a certain amount of skill in a given field, and is therefore a known quantity.

These sort of education and training regimes provide information about the quality of someone’s work or education.  But more importantly, they are voluntary, and are not required in order to practice a given field.  If someone were to start a barbershop, but had never gone to barbering school, yet possesed a natural gift for barbering, is there any reason why they should have to go to many months of expensive and time consuming schooling?  A license, fee, or permit requirement, absent compelling justification, violates the right of free people to earn a living in the manner in which they see fit.

Occupational Licensing in Texas

The primary state agency in Texas that governs occupational licensing is the Texas Department of Licensing and Regulation.  The Department governs the licensing and regulation of many jobs and careers in the state.  A cursory glance at the Department’s website[3] lists the fields that are subject to licensing from the state and the TDLR.

The list of licensed jobs is truly extensive, ranging from air conditioning and refrigeration contractors, all the way down the list to weather modification, with some peculiar stops along the way.  Included among the jobs that are subject to TDLR regulation are:  midwives, massage therapy, polygraph examiners, and auctioneers.  As an aside, auctioneers in the state of Texas are governed by 12 pages of licensing law[4], and the application for an auctioneer’s operating permit is 4 pages long[5], and the cost for applying for a license itself is $100.  It beggars the mind to think of the hoops that must be jumped through to come up with the justifications for licensing auctioneers.  Regardless, at the end of the day, Texans can rest easy that if they do attend an auction, the auctioneer, defined as “ any individual who sells or offers to sell property of another person by live bid at auction, with or without receiving consideration.”[6], is properly licensed and has been vetted by the state.

While the licensing of auctioneers may be one of the most eye-opening, or even laugh inducing, examples of licensed professions, it is not necessarily the most illustrative of the damage and lost potential that unwise and imprudent licensing can create.  To examine that, the licensing and certification regimes that govern barbering are to be examined, and the implications of these restrictions laid out.

The Licensing of Barbers

Barbershops are, in many ways, part of the broader American cultural landscape.  Neighborhood barbershops are where fathers and sons get their hair cut, swap stories, and shoot the breeze with other men.  Unfortunately however, the profession of barbering is subject to a truly astonishing number of regulations governing not only the practice of cutting hair, but also the coursework that is required to be taught in barbering schools, down to the most minute and seemingly most unusual of details, such as the “scientific fundamentals of barbering”.

In Texas, the law concerning the practice of barbering covers 26 pages of information, and lists, in exhaustive detail, the definitions, rules, practices, and educational requirements that the state of Texas has deemed to be central to being a barber in the Lone Star State.  For example, the state has decided that there are to be no less than 10 separate types of barbering license application forms in the state, in addition to the requirements listed in rest of the law governing barbers in the state.  There are educational requirements for barbers in the state as well, with material required to be covered by instructors, including educating prospective barbers on the “histology of the hair, skin, muscles, and nerves”[7]  The barbering permit itself in the state of Texas is not terribly expensive[8], only costing 55 dollars, which is just over half as expensive as the ever so important auctioneer license application fee of 100 dollars.  In addition to the application for a license, an examination must be scheduled as well.  This is to demonstrate to the Texas Department of Licensing and Regulation, and the Advisory Board of Barbering, that a prospective barber in the state has demonstrated the skill to display a state issued barbering license.

There is however a very revealing caveat in the permit however, and it gives the game away.  “TDLR does not accept training by apprenticeship”  A prospective applicant can have years, if not decades, of experience in barbering, be very good at their job, but without having attended a state sponsored barbering school, they are not allowed to legally practice a trade that they have spent years mastering.  This is perverse, particularly when the high cost, in both time and money, of barbering schools is taken into account.  The average cost of barbering schools varies, but averages between 5,000 and 15,000 dollars[9], and requires hundreds of hours of classroom time.  All of this time and effort for a job that can, and historically has been, one based around on the job training, and skill based.

Why does all of this matter for barbers?  What is the point of laying all of this information out for the reader?  The point is quite simple.  The licensing requirements for barbers, but also other service based jobs such as cosmetologists, among others, essentially removes several rungs from the ladder of prosperity for the less well off in Texas.  While to many, spending 5,000 to 15,000 dollars on a course of schooling may not be that much money in the grand scheme of things, particularly compared to the astronomical cost of attending a four year college, proportionally, this is a massive investment of time and money for a prospective barber, and robs them of several things:  time, lost earnings, and the dignity of being able to work in their chosen field.

Frederic Bastiat writes about what is seen and unseen in his timeless work “The Law”  This refers to the visible results of a policy or effort, and contrasts them with the unforeseen consequences of these efforts.  When the city of Austin passed a ban on plastic bags in grocery stores, what was seen was the lack of plastic bags, but what was unseen was the additional cost of customers having to purchase plastic bags at checkout, or invest in their own reusable bags.  This is, course, in addition to the additional costs that grocery stores incur by having to stock their own reusable plastic bags, and then passing those costs onto customers.

With occupational licensing, what is seen is the state issued permit, displayed where the regulations require, and in a manner consistent the regulations.  What is not seen is the time lost being trained on superfluous and unnecessary items.  What is not seen is the lost earnings by having to pay for a license and schooling.  What is not seen is the ability to earn an honest living absent unreasonable interference.

Objections to Freedom

None of the information presented thus far should be taken to imply a hostility towards all regulation or licensing regimes.  Far from it.  The primary takeaway from this paper should be that there is a great deal of regulation that is superfluous, or even unnecessary.  The effort to essentially legislate away all risk, uncertainty, or worry, ignores the fact that, in many cases, the competitive pressures of markets, and the censure of losing customers, acts as a far better deterrent to bad behavior than any regulation or bylaw ever could.  No entrepreneur wants their customers to get ill, sick, or have an unsatisfactory experience.

Of the objections towards towards allowing more freedom, and removing licensing requirements for many professions, by far the most common objection is from a standpoint of public safety.  The argument typically follows some variation of the following:  “If we allow ‘x’ to be unregulated and/or unlicensed, people will be vulnerable to predation and victimization from unscrupulous business owners who have every incentive to behave poorly.  And these business owners surely would behave like the mythical robber barons of the late 19th century if left unchecked, and that is why the state must regulate the practice of auctioneering.”

There is a fair amount to unpack in this line of thought.  The first aspect is the assumption that, absent state coercion, business owners will behave poorly.  This was addressed earlier in this section.  When business owners and entrepreneurs must compete for business, and are not reliant upon political entrepreneurship and favor seeking, they have an existential need to keep their customers happy, and not provide poor products or service.  Consider a barbershop.  If someone goes to a barbershop, pays for a haircut, and gets a profoundly unsatisfactory haircut that is not only hideous to look upon, but also socially limiting in its ugliness, they are not only unlikely to go back to that establishment, but they are also highly likely to tell their friends and acquaintances to avoid that particular barbershop at all costs.  If follows from this that business owners have a quite pressing need to satisfy their customers, or they will lose them.  As mentioned previously, market censure is more effective than any licensing regime ever could be.

The argument articulated above also presumes that customers are captive to businesses and entrepreneurs.  This has it precisely backwards.  Customers have the capability to vote with their wallets and their business.  If a company is doing shoddy work, in whatever field they are engaged in, they will lose revenue, and be forced to close.  Far from being helpless, when markets are allowed to be free, customers are in a position of tremendous power.

Leaving aside the business aspects of the above objection to freedom, from a health and safety standpoint, or even from a fraud standpoint, there are already existing avenues to petition for a redress of grievances.  If a consumer is sold a faulty product, whatever that product may be, under fraudulent premises, they already possess the ability to seek relief.  Licensing a cosmetology shop or taco truck does precisely nothing to change that if a consumer is injured through negligence, or gets sick as a result of undercooked food, they have means to be compensated for their misfortune, in addition to the powerful incentive for businesses not to harm their customers.

Fundamentally, the issue with many licensing regimes, not just in Texas, but across the country, is that, while they may be rational, they are often profoundly unreasonable.  While rationality and reasonableness may appear to be closely related, what is rational may not be reasonable.  To illustrate, consider the laws and regulations that govern barbering.  Is it rational for the average barber to know about hygienic bacteriology, chemistry relating to sterilization and antiseptics, and common skin disorders?[10]  Perhaps.  These are things that could rationally be assumed to come up in the course of being a barber.  The issue is that these are all things that cannot be reasonably expected to pop up in the course of being a barber.

To allow for the expansion of opportunity, regulations and licensing regimes need not be scrapped entirely.  And nothing in this paper should be taken as hostility towards the people who create, craft, and implement these rules.  That being said, to allow for more Texans to experience not only the dignity of work, but also to enjoy their natural right to pursue their own happiness, absent unreasonable interference, perhaps many of the existing regulations should be examined in light of whether or not they are reasonable requirements and restrictions.  And, if they are found to be unreasonable, then they could be rolled back or changed.  The important thing is for their to be serious inquiry into whether many of the licensing requirements in Texas are truly reasonable, or simply rational.

A Short Exploration of Natural Rights

As mentioned earlier, the Declaration of Independence lists “life, liberty, and the pursuit of happiness” as three of the inalienable natural rights that every human being enjoys as a consequence of simply being human.  But what does this mean for Americans and Texans today?  What are natural rights?  To answer this, a short discussion of natural rights needs to be undertaken before discussing how the pursuit of happiness is curtailed.

The Framers of the Constitution, who were in many cases many of the same men who were involved in the great convention in Philadelphia, operated within a natural rights framework.  But what does this mean?  Natural rights are the rights that all free people have from birth, and possess by the simple virtue of being a free human being.  These rights are intrinsic rights, that cannot be granted by anyone, and they can only be deprived and taken by force.  There is no central body in a free society that grants people the right to speak their minds, or issues a certificate that states what religious faith they are allowed to believe.  Those states where there are such bodies and institutions are rightly considered to be abusers of human rights.  What this means is that natural rights are negative rights, in contrast to positive rights that are granted to people.

To illustrate the difference between a negative and a positive right, consider a legislatively created “right” to a particular service, whether that service is medical treatment, or cable television or some other product.  Contrast this with a guarantee of the freedom to choose a cable television provider, or medical care absent unreasonable interference.  The former is a right to something, and the latter is the right to be free from something.  One is dependent upon being provided, and the other is simply having the opportunity to pursue something, in this case medical care or a preferred cable television provider.  Taking the example out a little further,

Admittedly, the language of “rights” can, and does, get murky quite rapidly.  What is to even be considered an important right, one worthy of protection?  What are rights that are to be given shorter shrift?  What one person may consider to be a key, and even foundational right, may be considered by someone else to be of little to no importance to someone else and not worthy of protection.  This is where a healthy understanding of how natural rights operate can be of tremendous use.  Natural rights, in their conception, can be seen as general guideposts for conduct.  Free people are assumed to have the right to do something, whatever that particular thing may be, absent infringing on the same rights of other people.  This necessarily means that natural rights defy easy categorization.  Attempting to list all of the rights that free people possess is a fool’s errand, and one in much the same vein as attempting to count all of the grains of sand on a beach.  The best way to understand the relationship between natural rights and freedom is that they go hand in hand.  People have the right to be free, and the protection of their natural rights serves to secure that freedom from unreasonable restrictions.

The influence of this natural rights framework can be seen in the very structure of the United States Constitution as a document that was written in the natural rights tradition.  In the natural rights framework that the United States was founded on, and, generally speaking, still operates under, the rights of the people can be assumed to be without limit, and the rights of the government are assumed to be limited, defined, and few.  There should be a very compelling reason to interfere with the rights of people to freely go about their lives, whether that reason is an imminent danger to other people, demonstrated fraudulent activities, or some other non-socially conducive action.  That being said, there needs to be a good reason, otherwise the citizens are not free citizens, they are rather subjects of the government, and need to ask for permission to exercise their rights.  This, of course means, that rights no longer exist, and are more accurately described as privileges, or licenses.

Closing Thoughts

Referring back to the earlier discussions around the spread of licensing requirements, and the ever expanding growth of said requirements, we see the inversion of the traditionally accepted idea that people are free to go about their lives free from unreasonable interference.  People, being born free, possess the natural right to earn a living in the field of their choice.  There are now far too many fields requiring permits or licenses that should not require them.

100 dollars and a dream may no longer be all that is needed to pursue one’s dreams, but at least it will cover all, or part, of the permitting required to pursue that dream.  With the state’s approval of course.

Duncan Taylor – Policy Analyst

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