America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .
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 rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.
I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.
Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.
Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".
There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.
No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.
Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.
Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.
(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).
UPDATE: I respond to Professor Barnett's reply in a new post here.