Justice Willett,
joined by Justice Lehrmann and Justice Devine, concurring.
To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me — that it was mine — that my hands were my own, and could earn more of the precious coin.... I was not only a freeman but a free-working man, and no master Hugh stood ready at the end of the week to seize my hard earnings,1
Frederick Douglass’s irrepressible joy at exercising his hard-won freedom captures just how fundamental — and transforma-tive — economic liberty is. Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.2
Texans are doubly blessed, living under two constitutions sharing a singular purpose: to secure individual freedom, the essential condition of human flourishing. In today’s age of staggering civic illiteracy — when 35 percent of Americans cannot correctly name a single branch of government — it is unsurprising that people mistake majority rule as America’s defining value.3 But our federal and state charters are not, contrary to popular belief, about “democracy1 — a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th- and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy).
One of our constitutions (federal) is short, the other (state) is long — like really long — but both underscore liberty’s primacy right away. The federal Constitution, in the first sentence of the Preamble, declares its mission to “secure the Blessings of Liberty.”4 The Texas Constitution likewise wastes no time, stating up front in the Bill of Rights its paramount aim to recognize and establish “the general, great and essential principles of liberty and free government.”5 The point is unsubtle and undeniable: Liberty is not provided by gov*93ernment; liberty preexists government. It is not a gift from the sovereign; it is our natural birthright. 'Fixed. Innate. Unalienable.
* * * # #
Democracy is two toolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.
6
This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint? The Texas ■ Constitution confers power — but even more critically, it constrains power. What are the outer-boundary limits on government actions that trample Texans’ constitutional right to earn an honest living for themselves and their families? Some observers liken judges to baseball umpires,- calling legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on occupational freedom? Are the most patently farcical and protectionist restrictions nigh unchallengeable, or are there, in fact, judicially enforceable limits?
This case raises constitutional eyebrows because it asks building-block questions about constitutional architecture — about how we as Texans govern ourselves and about the relationship of the citizen to the State. This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.
The U.S. Supreme Court has repeatedly declared that the right to pursue a lawful calling “free from unreasonable governmental interference” is guaranteed under the federal Constitution,7 and is “objectively, deeply rooted in this Nation’s history and tradition.”8 A pro-liberty presumption is also hardwired into the Texas Constitution, which declares no citizen shall be “deprived of life, liberty, property, [or] privileges or immunities”9 — phrasing that indicates citizens already possess these freedoms, and government cannot take them “except by the due course of the law of the land.”10 Texans are thus presumptively free, and government must justify its deprivations. So just how nonsensically can government stifle your constitutional right to put your know-how and gumption to use in a gainful trade?
I recognize the potential benefits of licensing: protecting the public and preventing charlatanism. I also recognize the proven benefits of constitutional constraints: protecting the public and preventing collectivism. Invalidating irrational laws does not beckon a Dickensian world of run-amok frauds and pretenders. The Court’s view is simple, and simply stated: Laws that impinge your constitu*94tionally protected right to earn an honest living must not be preposterous.
By contrast, the dissents see government power in the economic realm as infinitely elastic, and thus limited government as entirely fictive, troubling since economic freedom is no less vulnerable to majoritarian oppression than, say, religious freedom — perhaps more so. Exalting the reflexive deference championed by Progressive theorists like Justice Oliver Wendell Holmes, Jr., the dissents would seemingly uphold even the most facially protectionist actions. Stranger still, the principal dissent, while conceding that our state and federal Constitutions protect economic liberty, quotes liberally from Justice Holmes, who rejected that the Fourteenth Amendment does any such thing.11
In any event, as Justice Holmes cruelly proved, dogmatic majoritarianism can exact a ruthless price. In Buck v. Bell, the U.S. Supreme Court considered whether Carrie Buck, a Virginia teenager raped and impregnated by her foster parents’ nephew, could be forcibly sterilized on grounds that she was “feeble minded.”12 Speaking through Justice Holmes, the Court credulously accepted at face value the government’s assertion that public welfare was a good-enough reason to forbid the “manifestly unfit from continuing their kind.”13 Compulsory sterilization was preferable to waiting to “execute degenerate offspring for crime, or to let them starve for their imbecility.”14 Nothing— not even coercive eugenics — trumped judicial submissiveness to whatever the majority decreed. Justice Holmes was unyielding, thundering one of the most heartless, ignominious lines in Supreme Court history: “Three generations of imbeciles are enough.”15
Justice Holmes later boasted to a friend that “[it] gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles.”16 Unquestioning deference necessarily meant civil *95liberties were trampled, but Justice Holmes’s pro-statism minced no words: “a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”17 In fact, said Justice Holmes, “if my fellow citizens want to go to Hell I will help them. It’s my job.”18
Like the Court, I favor a less hardhearted and more liberty-minded view for Texas, one that sees the judiciary as James Madison did when he introduced the Bill of Rights, as an “impenetrable bulwark” against imperious government.19 The Texas Constitution enshrines structural principles meant to advance individual freedom; they are not there for mere show. Our Framers opted for constitutional — that is, limited — government, meaning majorities don’t possess an untrammeled right to trammel. The State would have us wield a rubber stamp rather than a gavel, but a written constitution is mere meringue if courts rotely exalt ma-joritarianism over constitutionalism, and thus forsake what Chief Justice Marshall called them “painful duty” — “to say, that such an act was not the law of the land.”20
To be sure, the Capitol, not this Court, is the center of policymaking gravity, and judges are lousy second-guessers of the other branches’ economic judgments. Lawmakers’ policy-setting power is unrivaled — but it is not unlimited. Preeminence does not equal omnipotence. Politicians decide if laws pass, but courts decide if those laws pass muster. Cases stretching back centuries treat economic liberty as constitutionally protected — we crossed that Rubicon long ago — and there is a fateful difference between active judges who defend rights and activist judges who concoct rights. If judicial review means anything, it is that judicial restraint does not allow everything. The rational-basis bar may be low, but it is not subterranean.
I support the Court’s “Don’t Thread on Me” approach: Threaders with no license are less menacing than government with unlimited license.
I.
This case lays bare a spirited debate raging in legal circles, one that conjures legal buzzwords and pejoratives galore: activism vs. restraint, deference vs. dereliction, adjudication vs. abdication. The rhetoric at times seems overheated, but the temperature reflects the stakes. It concerns the most elemental — if not elementary — question of American jurisprudence: the proper role of the judiciary under the Constitution.
Judicial duty requires courts to act judicially by adjudicating, not politically by legislating. So when is it proper for a court to strike down legislative or executive action as unconstitutional? There are people of goodwill on both sides, and as this case demonstrates, it seems a legal Rorschach test, where one person’s “judicial engagement” is another person’s “judi*96cial usurpation.”21
There are competing visions, to put it mildly, of the role judges should play in policing the other branches, particularly when reviewing economic regulations. On one side is the Progressive left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge Robert Bork falls into this camp. A conservative luminary, Bork is hem to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.22 As Judge Bork put it, “majorities are entitled to rule, if they wish, simply because they are majorities.”23
The other side advocates “judicial engagement” whereby courts meaningfully enforce constitutional boundaries, lest judicial restraint become judicial surrender.24 The pro-engagement camp argues the judiciary should be less protective of Leviathan government'and more protective of individual freedom. Government exists, they contend, to secure pre-existing rights, as the Declaration makes clear in its first two paragraphs.25 Thus, when it comes to judicial review of laws burdening economic freedoms, courts should engage forthrightly, and not put a heavy, pro-government thumb on the scale.
This much is clear: Spirited debates over judicial review have roiled America since the Founding, from Marbury v. Madison,26 to Worcester v. Georgia27 (against which President Jackson bellowed, “John Marshall has made his decision — now let him enforce it.”28), to the late 19th and early 20th centuries, when Progressives opposed judicial enforcement of economic liberties, all the way to present-day battles over the Patient Protection and Affordable Care Act.29 In the 1920s and 1930s, liberals began backing judicial pro*97tection of noneconomic rights, while resisting similar protection for property rights 'and other economic freedoms. The Progressives’ preference for judicial nonintervention was later embraced by pdst-New Deal conservatives like Judge Bork. The judicial-review debate, both raucous ánd reasoned, is particularly pitched today within the broader 5 conservative legal movement. A prominent fault line has opened on the right between traditional conservatives who champion majoritarianism and more liberty-minded theorists who believe robust judicial protection of economic rights is indispensable to limited government.30
When it comes to regulating the economy, Holmesian deference still dominates, as seen in the Supreme Court’s landmark 2012 decision upholding the constitutionality of the Affordable Care Act.31 During oral argument, the Solicitor General— echoing the dissenters in today’s case— admonished that striking down President Obama’s signature health-care law would amount to judicial activism that would “import Lochner-style substantive due .process.”32 The Court, he implored, “has a solemn obligation to respect the judgments of the democratically accountable branches of government.”33 A few days later, the President himself charged it would constitute raw judicial activism if the Court took the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,”34 adding, “We have not seen a court overturn a law'that'was passed by Congress on an economic issue ..; for decades” — “We’re going to the ’30s, pre-New Deal.”35 We know how the story ended. The Court upheld the ACA on tax-power grounds, with Chief Justice Roberts famously stating, “It is not' our job to protect the people from the consequences of their political choices.”36
*98Today’s case arises under the Texas Constitution, over which we have final interpretive authority, and nothing in its 60,-000 — plus words requires judges to turn a blind eye to transparent rent-seeking that bends government power to private gain, thus robbing people of them innate rights antecedent to government — to earn an honest living. Indeed, even if the Texas Due Course of Law Clause mirrored perfectly the federal Due Process Clause, that in no way binds Texas courts to cut-and-paste federal rational-basis jurisprudence that long post-dates enactment of our own constitutional provision, one more inclined to freedom.
The principal dissent claims “the rational basis standard invokes objective reason as its measure,” a contention difficult to take seriously.37 Legal fictions abound in the law, but the federal “rational basis test” is something special; it is a misnomer, wrapped in an anomaly, inside a contradiction. Its measure often seems less objective reason than subjective rationalization. The dissent also says the fact that other states regulate threading provides “strong evidence that Texas’s regulatory framework has a rational basis.”38 In my view, what happens in the Aloha State makes not the slightest constitutional difference in the Lone Star State. Unconstitutional encroachments reach across time zones and centuries. Just this week, in a case that took almost 80 years to bring, the U.S. Supreme Court struck down as unconstitutional a New Deal-era, raisin-confiscation regime that had spanned thirteen Presidents.39
The test adopted today bears a passing resemblance to “rational basis”-type wording, but this test is rational basis with bite, demanding actual rationality, scrutinizing the law’s actual basis, and applying an actual test.40 In my view, the principal *99dissent is unduly diffident, concluding the threading rules, while “excessive”41 and “obviously too much”42 are not “clearly arbitrary.”43 If these rules are not arbitrary, then the definition of “arbitrary” is itself arbitrary. Without discussing (or even citing) recent federal cases striking down nonsensical licensing rules under the supine federal test,44 the dissents sever “rational” from “rational basis,” loading the dice — relentlessly—in government’s favor.45 Their test is tantamount to no test at all; at most it is pass/fail, and government never fails.46
*101II.
You take my house when you do take the prop/
That doth sustain my house; you take my life!
When you do take the means whereby I live.
47
Government understandably wants to rid society of quacks, swindlers, and incompetents. And licensing is one of government’s preferred tools, aiming to protect us from harm by credentialing certain occupations and activities. You can’t practice medicine in Texas without satisfying the Board of Medical Examiners. You can’t zoom down SH-130 outside Austin at 85 miles per hour (reportedly the highest speed limit in the Western Hemisphere) without a driver’s license. Sensible rules undoubtedly boost our quality of life. And senseless rules undoubtedly weaken our quality of life. Governments at every level — national, state, and local — wield regulatory power, but not always with regulatory prudence, which critics say stymies innovation, raises consumer prices,48 and impedes economic opportunity with little or no concomitant public benefit.49 The academic literature has attained consensus: “a licensing restriction can only be justified where it leads to better quality professional services — and for many restrictions, proof of that enhanced quality is *102lacking.”50
It merits repeating: Judicial duty does not include second-guessing everyday policy choices, however improvident. The question for judges is not whether a law is sensible but whether it is constitutional. Does state “police power” — the inherent authority to enact general-welfare legislation — ever go too far? Does a Texas Constitution inclined to limited government have anything to say about government irrationally subjugating the livelihoods of Texans?
A.
The Republic of Texas regulated just one profession: doctors.51 In 1889, the State of Texas added one more: dentists.52 Until the mid-20th century, occupational regulation in the Lone Star State was rare (aside from the post-Prohibition alcohol industry)53 and was generally limited to professions with a clear public-safety impact: nurses, pharmacists, optometrists, engineers, etc.
Since World War II, however, the economy, both nationally and here in Texas, has undergone a profound shift. States now assert licensing authority over an ever-increasing range of occupations, particularly in the fast-growing service sector, which makes up “three-quarters of gross domestic product and most job growth in the U.S.”54 During the 1950s, fewer than five percent of American workers needed a state license.55 By 1970 it had doubled to 10 percent, and by 2000 had doubled again.56 In 2006, nearly one-third of U.S. *103workers needed government permission to do their job.57
This spike in licensing coincides with a decline in labor-union membership. “In fact, [occupational licensing] has eclipsed unionization as the dominant organizing force of the U.S. labor market.”58 Twice as many workers today are covered by licensing as by labor contracts.59 Moreover, the pervasiveness of licensing seems unrelated to whether a state is labeled “red” or “blue” politically. Occupational regulation seems wholly disconnected from party-specific ideology. In addition, most economic regulations are enacted not by legislatures answerable to voters but by administrative bodies, often with scant oversight by elected officials.
The Lone Star State is not immune from licensure proliferation. An ever-growing number of Texans must convince government of their fitness to ply their trade, spurring the House Committee on Government Efficiency and Reform in 2013 to lament the kudzu-like spread of licensure: “The proliferation of occupational licensing by the State of Texas can be to the detriment of the very consumer the licensing is professing to protect.”60 Today the number of regulated occupations exceeds 50061 —about 2.7 million individuals and businesses,62 roughly one-third of the Texas workforce,63 higher than the national average64 — with many restrictions backed by heavy fines and even jail time. Importantly, these statistics reflect state-only regulations; local and federal rules raise the number of must-be-licensed workers higher still.65
Unlike some states, Texas doesn’t yet require florists,66 interior designers,67 horse' massagers,68 ferret breeders,69 or *104fortune tellers70 to get state approval (though the soothsayers would presumably see it coming). But the Lone Star State does require state approval to be a shampoo apprentice.71 And to be an in-person auctioneer72 (though not to be an internet auctioneer). And while you don’t need a license to be a bingo caller in Texas, you must be listed on the Registry of Approved Bingo Workers in order to yell out numbers and letters.73
The “sum of good government,” Thomas Jefferson said in his first inaugural, was one “which shall restrain men from injuring one another” — indisputably true — but “shall leave them otherwise free to regulate their own pursuits of industry and improvements.”74 Without question, many licensure rules are justified by legitimate public health and safety concerns. And isolating the point at which a rule becomes unconstitutionally “irrational” eludes mathematical precision. But it is no more imprecise as when judges ascertain under the Constitution when a search is “unreasonable”75 or bail “excessive”76 or cause “probable”77 or punishment “cruel and unusual.”78 Degree of difficulty aside, judges exist to be judgmental, hence the title.
The Texas Constitution has something to say when barriers to occupational freedom are absurd or have less to do with fencing out incompetents than with fencing in incumbents. As Nobel economist Milton Friedman observed, “the justification” for licensing is always to protect the public, but “the reason” for licensing is shown by observing who pushes for it — usually those representing not consumers but vested, already-licensed practitioners.79 In other words, government’s coercive power is often wielded to quash newcomers. As two federal appellate judges provocatively put it, “The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free reign to subjugate the common good and individual liberty to the electoral calculus of politicians, the whims of majorities, or the self-interest of factions.”80 Summarizing: “Rational basis review means property is at the mercy of the pillagers. *105The constitutional guarantee of liberty deserves more respect — a lot more.”81
Indeed, some fret that the focus of occupational regulation has morphed from protecting the public from unqualified providers to protecting practitioners from unwanted competition. Courts are increasingly asking whether societal benefits are being subordinated to the financial benefits of those lucky enough to be licensed. The U.S. Court of Appeals for the Fifth Circuit recently buried the so-called “casket cartel” in Louisiana, siding 3-0 with a group of woodworking Benedictine monks who supported their monastery by selling handcrafted pine coffins. State-licensed funeral directors found the competition unwelcome, and the monks were threatened with a fine and jail time for breaching Louisiana law that said only state-licensed funeral directors could sell “funeral merchandise.” In striking down the anticompetitive law, the Fifth Circuit explained: “The great’ deference due state economic regulation does- not demand judicial blindness to the history of a challenged rule or to the context of its adoption nor does it require courts to accept nonsensical'explanations for regulation.”82 While acknowledging that Williamson v. Lee Optical83 — the Supreme Court’s authoritative treatment of rational-basis scrutiny — dictates deference to state policymakers, the Fifth Circuit underscored that “Williamson insists upon a rational ■ basis,” adding, “a hypothetical rationale, even post hoc, cannot be fantasy” or impervious to “evidence of irrationality.”84
A similar casket-cartel law- was invalidated in 2002 by the U.S. Court of Appeals for the Sixth Circuit, the first federal appellate court since the New Deal to invalidate an economic regulation for offending economic liberties -secured by the Fourteenth Amendment.85 The court found no *106sensible connection between the onerous licensing requirements and the law’s alleged “health and safety” purpose. The court rejected the state’s predictable cries of “Lochnerism” and said the alleged bases for the law came close to “striking us with ‘the force of a five-week-old, unrefrigerated dead fish.’”86 The Sixth Circuit concluded it was ludicrous to see the law as anything but “an attempt to prevent economic competition,”87 and that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”88 Granting special economic favors to preferred interests may be a common government purpose — “the favored pastime of state and local governments,” as the Tenth Circuit put it89 — but common doesn’t mean constitutional. Merely asserting — and accepting — “Because government says so” is incompatible with individual freedom. Courts need not be contortionists, ignoring obvious absurdities to contrive imaginary justifications for laws designed to favor politically connected citizens at the expense of others.
More and more, courts — even comedians 90 — are scrutinizing the entry barriers imposed by occupational regulations. Earlier this year, a federal district court in Austin rejected the state’s attempt to force a teacher of African hair braiding to meet state barber-school regulations.91 Isis Brantley was vexed as to why her Institute of Ancestral Braiding needed a 2,000-square foot facility, 10 barber chairs, and 5 sinks to teach people how to twist and braid hair.92 The court examined means and ends and agreed the requirements were senseless.93 Why require sinks, for example, when braiders don’t wash hair, and state law allows braiders to use just hand sanitizer?94 The court refused to accept blindly the state’s purported justifications. It conducted an actual judicial inquiry and observed the state was trying to “shoehorn two unlike professions ‘into a *107single, identical mold, by treating hair braiders — -who perform a very distinct set of services — as if they were [barbers].’ ”95 The court stressed “the logical disconnect inherent in the scheme which contemplates the existence of hair-braiding schools but makes it prohibitively difficult for a hair-braiding school to enter the market.”96 The court concluded the rules lacked any “rational relationship to' any legitimate government interest”97 and were thus unconstitutional under the Fourteenth Amendment.98
Tellingly, the state declined to appeal, saying it would instead launch “a comprehensive review of the barber and cosmetology statutes” and “work with [the] legislative oversight committees on proposals to remove unnecessary regulatory burdens for Texas businesses and entrepreneurs.”99 Legislative response was swift — and unanimous — and Governor Abbott 15 days ago signed House Bill 2717 to deregulate hair braiding.100 But as with many matters (e.g., public school finance), it took a judicial ruling on constitutionality to spark legislative action.
The U.S. Supreme Court itself recently examined how states regulate professions, scrutinizing whether licensing boards dominated by industry incumbents are rightly focused on'weeding out scammers and inept practitioners or wrongly focused on weeding out newcomers.101 Earlier this year in North Carolina, State Board of Dental Examiners v. FTC,102 the High Court held that a state dental board controlled by “active market participants” could be sued under federal antitrust law for cracking down on non-dentists who were offering teeth-whitening treatments.103 The decision brought a smile to licensure critics who had long argued that self-regulation invites self-dealing and that state licensing boards prone to regulatory capture deserved no immunity for Sherman Act104 abuses. Ever since Parker v. Brown 80-plus years ago,105 such boards were deemed outside the Act’s ban on cartels because, unlike traditional cartels, they were sanctioned by the state.106 No *108more. Parker no longer insulates regulated regulators regulating to anticompetitive effect. Licensing boards comprised of private competitors will face Sherman Act liability if they flex power to smother aspiring entrepreneurs.107
B.
As today’s case shows, the Texas occupational licensure regime, predominantly impeding Texans of modest means, can seem a hodge-podge of disjointed, logic-defying irrationalities, where the burdens imposed seem almost farcical, forcing many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business? Licensure absurdities become apparent when you compare the wildly disparate education/experience burdens visited on various professions. The disconnect between the strictness of some licensing rules and their alleged public-welfare rationale is patently bizarre:
Emergency Medical Technicians. EMTs are entrusted with life-and-death decisions. But in Texas, entry-level EMTs need only 140 hours of training before rendering life-saving aid.108 Contrast that with the radically more onerous education/experience requirements for barbers (300 hours),109 massage therapists (500 hours),110 manicurists (600 hours),111 estheticians (750 hours),112 and full-service cosmetologists (1,500 hours).113
Backflow Prevention Assembly Testers. Of the number of states and the District of Columbia that require licenses for backflow prevention assembly testers, the Lone Star State is the only place where it takes more than two weeks of training/experience — way more. Fifty times more. Not two weeks but two years.114
State licensing impacts our lives from head to toe. Literally. Starting at the *109top, where does hair end and the beard begin? Texas law has been quite finicky on the matter, leading Texas barbers and cosmetologists to spend years splitting legal hairs and clogging Texas courts. Both of these state-licensed professionals may cut hair, but until 2013 only barbers, not cosmetologists, had state permission to wield a razor blade to shave facial hair. Before 2013, if you wanted your beard shaved, you had to visit a barber (probably a man) and not a cosmetologist (probably a woman).115 And what is a “beard” anyway? Why, it’s the facial hair below the “line of demarcation” as defined in the Administrative Code.116 Even the Attorney General of Texas got all shook up wondering whether Elvis’s famous sideburns “were hair which a cosmetologist might trim, or a partial beard which could be serviced only [by] a barber.”117
At the other bodily extreme, what’s the demarcation between the foot (which podiatrists can treat) and the ankle (which they can’t)? These are high-stakes disputes, and sometimes the licensing bodies have jurisdictional spats with each other, usually over “scope of practice” issues. So where does the foot end and the ankle begin? In 2010, this Court ended a nearly ten-year legal battle between, in one corner, the Texas Medical Association and Texas Orthopedic Association, and in the other, the Texas State Board of Podiatric Medical Examiners and Texas Podiatric Medical Association.118
According to the academic literature, the real-world effects of steroidal regulation are everywhere: increased consumer cost; decreased consumer choice; increased practitioner income; decreased practitioner mobility119 — plus shrunken economic prospects for lower income, would-be entrepreneurs.120 Thomas Edison, with little formal schooling, likely could not be a licensed engineer today, nor could Frank ' Lloyd Wright be a licensed architect.121
*110III.
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.
122
Anyone acquainted with human nature understands, as Madison did, that when people, or branches of government, are free to judge their own actions, nothing is prohibited. The Court recognizes that Texans possess a basic liberty under Article I, Section 19 to earn a living. And to safeguard that guarantee, the Court adopts a test allergic to nonsensical government encroachment. I prefer authentic judicial scrutiny to a rubber-stamp exercise that stacks the legal deck in government’s favor.
My views are simply stated:
1. The economic-liberty test under Article I, Section 19 of the Texas Constitution is more searching than the minimalist test under the Fourteenth Amendment to the United States Constitution.
Even under the lenient rational-basis test — “the most deferential of the standards of review”123 — the would-be threaders should win this case. It is hard to imagine anything more irrational than forcing people to spend thousands of dollars and hundreds of hours on classes that teach everything they don’t do but nothing they actually do. Not one of the 750 required hours of cosmetology covers eyebrow threading. Government-mandated barriers to employment should actually bear some meaningful relationship to reality.
It is instructive to consider the U.S. Supreme Court’s first occupational licensing case, from 1889. In Dent v. West Virginia124 — which has never been overruled and is still cited approvingly125 — the Court upheld a physician-licensing regime, calling it a way to protect “the general welfare of [the] people” and “secure them against the consequences of ignorance and incapacity, as well as of deception and fraud.”126 But the Court cautioned that constitutional limits exist. Government is free to mandate requirements “appropriate to the calling or profession,” but not those that “have no relation to such calling or *111profession.”127 Why? Because that would “deprive one of his right to pursue a lawful vocation.”128 Restrictions must have a reasonable connection to the person’s fitness or capacity. That explains the High Court’s 1957 ruling in Schware v. Board of Bar Examiners,129 the only time the Court has struck down a licensing restriction under rational-basis review. In Schware, the Court invalidated New Mexico’s attempt to bar a Communist Party member from practicing law: “any qualification must have a rational connection with the applicant’s fitness or capacity to practice.”130
The federal rational-basis requirement debuted amid Depression-era upheaval in 1934, when the Court in Nebbia v. New York,131 criminalizing the sale of milk below the government-approved price, held “a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare,”132 so long as it is not “unreasonable or arbitrary.”133 Nebbia was a constitutional bombshell, and its abandonment of strong judicial protection for economic liberty presaged a vast expansion of government power. Twenty years later came the Court’s authoritative guidance on Fourteenth Amendment review of economic regulation: Williamson v. Lee Optical.134, In Lee Optical, the Court, while implicitly recognizing a liberty right to pursue one’s chosen occupation, held that economic regulation — here, forbidding opticians from putting old lenses in new frames — would be upheld if the court could conjure out of thin air any hypothetical reason why lawmakers might have enacted the law.135 Uncertainty has persisted for decades, partly because, as the Court acknowledges, “Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate government interest.’”136 Some federal circuits, including the Fifth, have held it is improper to regulate solely to insulate incumbent business from competition.137 But with a few notable exceptions, like the *112recent “casket cartel”138 and African hair-braiding cases,139 rational-basis review under the Fourteenth Amendment is largely a judicial shrug.
Indeed, federal-style scrutiny is quite unscrutinizing, with many burdens acing the rational-basis test while flunking the straight-face test. As the U.S. Supreme Court held almost 80 years ago in United States v. Carotene Products,140 government has no obligation to produce evidence to sustain the rationality of its action; rather, “the existence of facts supporting the legislative judgment is to be presumed.”141 Courts “never require a legislature to articulate its reasons for enacting a statute” and will uphold a law “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.142 Indeed, it is “entirely irrelevant” whether the purported justification for a burdensome law “actually motivated the legislature.”143 Challengers must negate every conceivable basis that might support it,144 and judges are exhorted to invent a color-able justification if the one articulated by the government falls short. All this explains why critics charge the test is less “rational basis” -than “rationalize a basis.”
The dissents would subordinate concrete scrutiny to conjectural scrutiny that grants a nigh-irrebuttable presumption of constitutionality. It is elastic review where any conceivable, theoretical, imaginary justification suffices. In my view, Texas judges should instead conduct a genuine search for truth — as they do routinely in countless other constitutional .areas — asking “What is government actually up to?” When constitutional rights are imperiled, Texans deserve actual scrutiny of actual assertions with actual evidence.
• Should Texas courts reflexively accept disingenuous or smokescreen explanations for the government’s actions? No.
• Is government allowed to prevail with purely illusory or pretextual justifications for a challenged law? No.
• Must citizens • negate even purely hypothetical justifications for the government’s infringement of liberty? No.
• Are Texas courts obliged to jettison their truth-seeking duty of neutrality and help government contrive post hoc justifications? No.
Texas judges should discern whether government is seeking a constitutionally valid end using constitutionally permissible means. And they should do so based on real-world facts and without helping government invent after-the-fact rationalizations. I believe the Texas Constitution requires an earnest search for truth, not the turn-a-blind-eye approach that prevails under the federal Constitution.145
*1132. The Texas Constitution narrows the difference in judicial protection given to “fundamental" rights (like speech or religion) and so-called “non-fundamental" rights (like the right to earn a living).
The jurisprudential fact of the matter is that courts are more protective of some constitutional guarantees than others. One bedrock feature of 20th-century jurisprudence, starting with the U.S. Supreme Court’s New Deal-era decisions, was to relegate economic rights to a more junior-varsity echelon of constitutional protection than “fundamental” rights. Nothing in the federal or Texas Constitutions requires treating Certain rights as “fundamental” and devaluing others as “non-fundamental” and applying different levels of judicial scrutiny, but it is what it is: Economic liberty gets less constitutional protection than other constitutional rights.
This is not opinion but irrefutable,' demonstrable fact. Ever since what is universally known as “the most famous footnote in constitutional law”146 — footnote four in Carolene Products in 1938147 — the U.S. Supreme Court has applied varying tiers of scrutiny to constitutional challenges. Simplified, the Court divides constitutional rights into two discrete categories: fundamental and non-fundamental. Upshot: Your favored First Amendment speech rights receive stronger judicial protection than your disfavored Fifth Amendment property rights. The fragmentation is less logical than rhetorical, and is anchored less in principle than in power. Under the post-New Deal picking and choosing, speech gets preferred status while economic liberty is treated as “a poor relation”148 — despite the Due Process Clause’s explicit inclusion of “property” (and given the High Court’s nullification of the Privilege or Immunities Clause in Slaughter-House). Speech rights get no-nonsense “strict scrutiny” to ensure government is behaving itself while property rights get servile, pro-government treatment.
For example, when courts decide an Establishment Clause challenge under the First Amendment, they normally défer to a State’s asserted secular purpose. But such deference is not blind.. Courts don’t simply take government’s word for it; they are careful to ensure that a “statement of such purpose be sincere and not a sham.”149 Same with gender classifications. The Court in 1996 struck down Virginia’s exclusion of women from Virginia Military Institute, explaining that government’s. asserted justification must be “genuine,” as opposed to one that’s been “hypothesized or invented post hoc in response to litigation.”150
Digital privacy 1 under the Fourth Amendment is another constitutional area *114where the U.S. Supreme Court requires real-world evidence rather than putting a pro-government thumb on the scale. Recently, in the landmark case Riley v. California,151 prosecutors, citing concerns for officer safety and preserving evidence, insisted they did not need a warrant before searching an arrested suspect’s smart-phone. The Court unanimously rejected the prosecutors’ excuses, making clear that justifications for burdening constitutional rights must be concrete, non-imaginary concerns “based on actual experience.”152 The Court held there was no real and documented evidence that warrantless searches were necessary to protect officers.153 As for evidence destruction, the Court was likewise unmoved, noting again the absence of actual evidence to back the State’s assertion, adding that in any event, law enforcement has “more targeted ways to address those concerns.”154
Some constitutional rights fall somewhere in between, like “commercial speech,” not because the Constitution draws that distinction but because judges do. Commercial speech — adverti