Randy Barnett responds to my blog post Strict Scrutiny for All! I mentioned this to a friend and he remarked that Barnett is the current "constitutional giant-slayer", to which I replied "and I'm no giant."
That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.
I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "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. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."
Second and more importantly, the main point of my post was that whatever she thinks the remedy should be (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.
But this line of attack is not limited to economic regulation -- it is a general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.
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3 comments:
I'm curious - what're your thoughts on the underlying point of Barnett's post (understanding that it doesn't really reply to yours)? A clever (I think) comment on his post reads: "One might say that the difference between
Carolene Products and Lee Optical is the difference between a rational basis review and a rationalization basis review." Perhaps there is merit in to returning to the pre-Lee Optical level of rational basis in economic and non-economic regulation.
David, I did not disagree with that aspect of your post because I agree with it. Note the subtitle of my book is "The Presumption of Liberty," which I agree should apply whenever individual liberty (or what would today be called a "liberty interest:) is being restricted. I was replying to your "strict scrutiny for every law" point. As Carolene Products exemplified, strict scrutiny is not the only alternative to no scrutiny.
But Brown misstates the history of state regulation of commerce -- the Supreme Court was OKing it long before the New Deal. It's the Lochner era that was the aberration.
Also, conservatives have generally attacked the Supreme Court for saying it's applying rational basis review and then striking a law down as irrational. See the reactions to Cleburne, Romer, Lawrence, same-sex marriage litigation, etc. Where a commercial regulation appears to be similarly motivated by a bias against a particular group (as with the mentally disabled in Cleburne or homosexuals in Romer), I would think that group could argue for the law's irrationality.
Certainly groups like Institute for Justice have brought cases, as in Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, where they argued that applying a regulation to businesses for which it didn't make sense was unconstitutional. There's also the option of fighting inappropriate regulations as being anti-competitive, eg in FTC v. NC Board of Dental Examiners.
We don't have a presumption that regulation must be wrong in most other areas. Eg when a Utah man tried to litigate his conviction for bigamy, the state supreme court upheld it even under rational basis review. (He was probably hamstrung in his defense by the difficulty of arguing that a majority-Mormon state would enact and enforce an anti-bigamy statute out of anti-Mormon animus... though one might think differently of Reynolds v. U.S. and federal anti-bigamy laws forced on the Territory.)
So in that sense economic regulation isn't even being treated by the courts much differently than non-economic regulation that doesn't single out "discrete and insular minorities" but applies pretty generally.
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