The barbershop ordinance: hours, citizens and two kinds of libertyLa ordenanza de las barberías: horarios, ciudadanos y dos clases de libertad

Facts

The city of Mesquite, Texas, adopts an ordinance “to protect the health of barbers and the quality of service.” Section 1 limits barbershops to eight hours of operation per day. Section 2 provides that a barber’s license may be issued only to United States citizens. Marco, a lawful permanent resident from Monterrey who has cut hair in Mesquite for six years, loses his license under section 2 and, as the owner of a shop that used to stay open twelve hours, loses a third of his revenue under section 1. He sues the city in federal court under the Fourteenth Amendment.

Call of the question

Analyze each section. Which standard of review applies to each, why, and who wins? Then answer in one paragraph the question the professor asked for October 30: what does this case show about the difference between liberalism in the economic sense and liberalism in the civil-rights sense?

Model answer

Issue. Marco challenges two provisions of a city ordinance, which is state action, so the Fourteenth Amendment applies directly without any need for a statute. The hours cap raises a due process (and perhaps equal protection) challenge to economic regulation; the citizenship requirement raises an equal protection challenge to a classification by alienage.

Rule and application, section 1. In 1905 Marco would have had a strong case: Lochner struck down a maximum-hours law for bakers as an interference with liberty of contract not justified by the police power. That approach was abandoned in 1937, and since then economic and social regulation is reviewed for a rational basis: the law stands if any conceivable legitimate purpose is rationally related to it, and the court does not weigh the evidence itself. Protecting barbers’ health and limiting fatigue-related accidents are legitimate purposes, and an hours cap is rationally related to them even if a better-designed law exists. The court will not ask whether eight hours is the right number. Section 1 survives, and Marco’s economic loss is irrelevant to the constitutional question.

Rule and application, section 2. A state or city classification that disadvantages lawful resident aliens is a suspect classification: aliens are a discrete and insular minority who cannot vote, and Graham v. Richardson applied strict scrutiny. The city must show a compelling interest and narrow tailoring. Protecting local jobs or the quality of service is not compelling, and citizenship has no relation to barbering skill. The political-function exception, which allows states to reserve offices that exercise governmental power (police officers, probation officers, some teachers) to citizens, does not reach a barber’s license. The city may also argue that the federal government regulates aliens freely, but federal immigration classifications receive deference because of Congress’s plenary power over immigration; a city has no such power. Section 2 fails.

The two liberties. The ordinance burdens Marco twice, and the Constitution answers the two burdens in opposite ways. His freedom to run his shop as he likes is the liberty Lochner protected and the Court no longer protects: economic liberalism lost its constitutional status in 1937 because judges concluded that economic policy belongs to legislatures. His right not to be excluded from a trade because of where he was born is the liberty of the civil-rights tradition that Carolene Products footnote four and Loving protect strictly, because it concerns a group the political process will not protect. The same clause, equal protection of the laws, yields deference in one case and suspicion in the other, depending on whether the law regulates the market or targets a vulnerable group.

Mexican comparison. Mexico’s article 1 forbids discrimination by national origin directly and the Supreme Court applies a proportionality test rather than tiers, so section 2 would fail there too; but the hours cap would be examined against article 5 (freedom of work) and article 123, which constitutionalize labor protections rather than freedom of contract, so the Mexican starting point for economic regulation is the opposite of Lochner’s.

Conclusion. Section 1 is constitutional under rational-basis review; section 2 is unconstitutional under strict scrutiny of a state alienage classification. Marco keeps his license and loses his hours.

Common mistakes

• Applying Lochner as current law to the hours cap.
• Treating the citizenship rule as economic regulation and applying rational basis.
• Forgetting that federal alienage classifications are reviewed differently from state ones.
• Answering the discussion question with a slogan instead of showing the two standards at work on the same facts.