Over 50 briefs were filed at the U.S. Supreme Court last week in support of Hobby Lobby, the national arts and crafts retailer battling the Department of Health and Human Services’ (HHS) for its disregard of religious liberty.
Although the legal issues varied, several briefs challenged a very corrosive premise that underlies the government’s mandate and, if accepted by the courts, could undermine the constitutional rights of all Americans trying to earn an honest living.
Specifically, HHS (and thereby the Obama Administration) argues that individuals surrender their personal rights when they seek to earn a living and organize their businesses in the corporate form. Put another way, HHS contends that the protection of the U.S. Constitution is conditional and that Americans must make a choice when entering the marketplace: incorporate and lose your assurance that government will respect your inherent dignity, or retain your personal rights (ie. free speech, exercise of religion, etc.) but subject yourself to a severe competitive disadvantage and risk of personal liability by ignoring the corporate form.
But, as the Cato Institute notes in their brief, this choice is not without a steep price.
“The fact is that the corporate form is an essential tool for operating successfully in the complex modern economy.”
“Without limited liability, the entrepreneur’s personal assets would be at risk. She would have greater difficulty raising capital. And in the end, the unincorporated business might be squeezed out by competitors-not based on merit, but based on the legal tax advantages available to its corporate competitors.”
HHS’s legal position turns the Constitution on its head. There is nothing inherent in the corporate form that requires individuals seeking to compete in the marketplace to surrender their constitutional rights. There is certainly nothing in the history and principles of the Constitution that forces entrepreneurs to choose between an honest living and their right to be protected from government excess.
The ability to pursue an honest living represents a cherished part of the free market. It should not be used as leverage to force the public acceptance of government regulations, especially at the expense of basic constitutional governance.