Of Restrictions Actual and Desired

Clark Neily of the Institute for Justice is guest-blogging at the VC on the subject of "judicial engagement", which is one of those words conservatives use when they want to strike down disagreeable legislation while still keeping the term "activist" in their back pocket. Anyway, Neily's argument is that the court should as aggressively scrutinize whether a congressional act is sanctioned under a constitutional grant of power as they do when an act is said to violate a constitutional restriction on it.

For example, "[i]n cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them." By contrast, Neily complains, in cases involving more general police power claims (interestingly, Neily does not appear to limit his case to federal enactments), courts are far more deferential, engaging only in a bare-bones "rational basis review". "Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do." "[B]asic ... analytical consistency" demands it.

This is impressively atextual. "Free speech" is not just a "favored constitutional value". It is a constitutional restriction -- a thou shalt not right in the text. When courts apply strict standards of review to laws which seem to impinge on it, what they are in effect saying is that "this law appears to breach a constitutional proscription. So if it's going to fly in spite of that restriction, you better have a damn good reason for it." In effect, it is asking when we'll allow overriding social need to trump textual bars.

By contrast, constitutional clauses like the Commerce Clause are grant of power. It makes no sense to apply the same level of scrutiny to laws which facially violate the constitution to those that don't (of course, if the Court doesn't think a law impinges on free speech norms, we never get to strict review in the first place. The finding of a constitutional tension is a prerequisite to heightened judicial scrutiny). Neily is essentially importing in the key facet of the First and Fourteenth Amendments (their status as legal restrictions on governmental authority) into every constitutional clause by abstracting away from the text and calling everything a constitutional "value". While Neily might wish that constitutional grants of power were circumscribed more sharply than they are, the fact is that (particularly with respect to state governments) there is a presumed residual authority to act unless a law violates a particular block on power.