In response to my recent post on Judge Janice Rogers Brown’s scathing rebuke of the U.S. Supreme Court’s economic-liberty jurisprudence, Ed Whelan asks me to provide more explanation of what level of judicial review for economic rights would be “meaningful” and what provisions of the Constitution require that kind of review. My response is unlikely to satisfy him, because his question ultimately stems from fundamental disagreements about the nature of the “judicial power” in Article III and the rights protected by the Constitution.
Whelan has stated before that he thinks that all levels of tiered scrutiny — from the rational-basis test to strict scrutiny — are illegitimate judicial inventions. To his mind, government acts are either proscribed by the Constitution or they’re not, full stop. The problem with this approach is that it is difficult to imagine how it would be put into practice. While it purports to be objective, judges attempting to discern the content of phrases like “freedom of speech” must ultimately delve into value-laden terms like “freedom.” This will necessarily require some inquiry — even if only a historical inquiry — both into which government motives are legitimate and which means the government may choose to pursue those motives. This reality is reflected in the fact that every sitting Justice on the Supreme Court believes that some form of tiered scrutiny applies to every individual-rights case.
To be sure, if one agrees with Whelan that all tiered scrutiny is illegitimate and that the Constitution does not protect unenumerated rights, then naturally one will be skeptical of calls for judicial engagement. But if one disagrees with those positions, then the question becomes how judges should best go about doing their jobs.
If one believes that the Constitution was written to protect at least some unenumerated rights, then it’s clear the rational-basis test fails to fulfill that basic purpose. Regardless of whether we’re talking about the Constitution’s guarantee that states shall not infringe the “privileges or immunities” of citizens or its guarantee that the enumeration of rights in the Constitution does not give the federal government license to “deny or disparage” other, unenumerated rights, asking judges to refrain from making up justifications — as they are required to do under the rational-basis test — and instead to try in good faith to discern what’s actually going on in a particular case isn’t asking too much.
Of course, as I said at the outset, I don’t expect that any of this will persuade Whelan — we disagree on too many fundamental premises. But I do hope it will persuade those who believe that the Constitution was designed to actually preserve liberty, not merely to leave open the possibility of it. We at IJ share that belief, and think it clear that the danger of judicial abdication — as exemplified in Powers v. Harris and the U.S. Supreme Court’s post–New Deal economic-liberty jurisprudence — poses a far greater danger to liberty than would modest steps towards judicial engagement.
— Paul Sherman is an attorney at the Institute for Justice, which in September 2011 released “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.”