The Shampoo Monopoly


May 26, 2016 11:55AM

We have filed a lawsuit against the Tennessee Board of Cosmetology because state law requires that a person obtain a license to do something a child can do: wash hair. Tennessee requires a person go to school for 300 hours to learn the “theory and practice of shampooing,” which involves such subject matters as how to answer the phone and drape a client with a clean towel. The tuition ranged upwards of $3,000 for a three-month course, that is, when schools offered it, which they currently do not. This makes it impossible to get a license unless one is willing to go through the 1,500 hour program to become a full-on cosmetologist. If all of this sounds bizarre, it should. This law is unconstitutional.

Among the constitutional challenges in the lawsuit is the claim that the shampoo license violates the Tennessee Constitution’s “anti-monopolies clause.” Since the U.S. Constitution offers no such protection, most people are unfamiliar with it. It reads: “monopolies are contrary to the genius of a free state, and shall not be allowed.”

Right there with all the other, better known rights–speech, freedom of worship, bearing of arms, etc.–Tennessee’s Constitution recognizes the importance of an open economy in which markets should operate. Also unlike the U.S. Constitution, the Tennessee Constitution contains rigid prohibitions against diminishing any legal rights. They “shall never be violated on any pretense whatever” and “ shall forever remain inviolate.” Our Constitution very plainly sets the right of Tennesseans to participate in an open market outside the limits of governmental interference.

Tennessee’s license requirement violates the anti-monopoly provision on multiple levels. First, the regulatory board charged with enforcement and drafting regulations has fourteen members. Twelve are required by law to be in the business; therefore they have every reason to behave in an anti-competitive manner. Second, under any circumstances, the license is a barrier to entry that protects those already in the business. The 300-hour requirement (followed by two exams) is a costly and onerous burden that prevents the market from freely operating. Selecting shampooers is surely something we can safely entrust to consumers. It’s hard to see how anyone could mess up shampooing because everyone does it to themselves, but if the worst case scenario is unclean hair, Yelp should make short work of any such incompetence.

Third, and finally, the lack of a school teaching shampooing means there’s no way to even get the license. The Board, which controls the licensure and curriculum of the schools, thought to specify the exact contents of the kits that students must purchase, but never bothered to obligate a single school to teach shampooing. One gets the sense that the Board operates with a mind to generate fees for itself and profits for the schools, but is notably unconcerned with meeting the needs of the students. This is totally upside down. If the Board is going to mandate that shampooers go to school, then the Board should require that there be schools to teach them, but it isn’t so. The schools, like the Board, should exist to serve citizens, not the other way around.

This is an unacceptable state of affairs. The Tennessee Constitution says that our government is instituted for the “good, safety, and happiness” of the people, otherwise we are not free. As a matter of natural law, power originates with the people. A free government is founded on their authority and consent. Says the University of Tennessee’s inestimable professor of law Glenn Harlan Reynolds: “This is a classically American theory of the relationship between the government and its citizens, very much in accord with the thinking of our nation’s founders. …” But when it comes to washing hair, Tennesseans are totally beholden to whatever grants the government cares to bestow. But an open market is not the government’s to give. In setting up a board-controlled monopoly that elevates its interests above its citizens, the shampoo law, silly as it is, constitutes a serious offense to the most fundamental of our constitutional precepts.

A requirement to get a license that is impossible to get sure sounds like the sort of prohibited “arbitrary power” that we have a constitutional duty to resist lest we slide into an ideology of state-subservience that is in the words of the Constitution–“absurd, slavish, and destructive of the good and happiness of mankind.”