Yet both sides also rely on the judiciary’s power to protect rights that they do consider important. Following the Carolene Products footnote, the Court now distinguishes different kinds of rights, protecting some with Lochner-style skepticism, while leaving others to the mercy of legislative whim. For example, the right to travel and the right to political speech are now considered “fundamental” rights, which means they are given a strong type of legal protection, called “strict scrutiny.” In these cases, courts presume that the individual is free and then require the government to justify the challenged law by showing that it is “narrowly tailored” to serve a “compelling government interest.” But other rights, including the right to build a home on one’s property or to negotiate various employment and commercial transactions free from governmental interference, are considered nonfundamental. These rights are still subjected to the ultra-deferential rational-basis test, under which the Court presumes that the legislature has vast regulatory powers and the individual is required to prove that the challenged law has no rational foundation at all, which is usually impossible to do.81 This well-known “double standard”82 has no basis in the Constitution, which makes no distinction between kinds of rights. It is instead the offspring of a Progressive political theory that prioritizes some rights over others, usually based on whether they are seen as promoting collective ends or only individual goals.83 This scheme has often been criticized by lawyers, law professors, and even federal judges, but it remains the framework within which constitutional cases are decided today.84
The result is a case like Kelo v. New London, the notorious 2005 decision allowing states to condemn private property and transfer it to private developers for the developers’ private profit, notwithstanding the Fifth Amendment’s requirement that takings be “for public use.” Susette Kelo and several neighbors challenged an attempt by their Connecticut hometown to boost the local economy by bulldozing their homes and giving their land to a developer to construct luxury condominiums. Kelo and her friends argued that, although states may use the power of eminent domain to build government installations such as military bases, or provide public services like roads or schools, they may not take property from one person and transfer it to another simply because politicians think doing so might result in greater tax revenue, or improve the overall look of the neighborhood. This would be a private use and not the public use the Constitution requires. Yet the Court rejected this argument in a decision that represents an almost perfect distillation of Progressive legal theory.
Using the rational-basis test devised in Nebbia, Justice John Paul Stevens emphasized that legislatures need “broad latitude in determining what public needs justify the use of the takings power.”85 Since “[p]romoting economic development is a traditional and long-accepted function of government,” government officials may take private property whenever they think that doing so would benefit the community.86 In dissent, Justice Clarence Thomas pointed out the ironic consequences of legal precedents that accord strong, Lochner-style protection to some rights, and apply Nebbia-style pro-government deference to others: “Though citizens are safe from the government in their homes, the homes themselves are not.” This absurd consequence reveals that “[s]omething has gone seriously awry with this Court’s interpretation of the Constitution.”87 After Kelo, owners of homes, businesses, churches, farms, and other property hold their property essentially as a privilege, at the mercy of the government.
By indulging political leaders in cases like this, the Supreme Court betrays its obligation to enforce constitutional guarantees for individual rights. The result is just what the Lochner Court warned would happen: government now has practically “unbounded power” because it can just assert that its acts are meant to serve the public good, and courts will regard those acts as “valid, no matter how absolutely without foundation the claim might be.”88 Remarkably, Justice Stevens himself was once a sharp critic of the rational-basis test he used in Kelo. In an earlier case, he argued that it “sweeps too broadly, for it is difficult to imagine a legislative classification that could not be supported by a ‘reasonably conceivable state of facts.’” Such an approach “is tantamount to no review at all.”89 His reliance on that test in Kelo proves that the Progressive theory leaves it to judges to decide when to enforce constitutional protections and when not to, in the service of political, rather than constitutional, goals.
Lochner and Kelo represent opposite views of the role of the judiciary, views that rest in turn on opposing theories about the relationship between liberty and order. If people are basically free, with government created to secure their rights, then laws restricting their freedoms can be justified only if they actually serve some general public benefit, not if they only benefit some at the expense of others. As Justice George Sutherland put it, Lochner recognized that freedom is “the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.”90 This view respects the primacy of liberty articulated in the Declaration of Independence, on which the Constitution is premised. On the other hand, if democracy takes priority, and individual freedoms are given to people by the government to serve the goals of political leaders, courts should avoid “judicial activism” by presuming in favor of government, as the Kelo Court did, and should allow elected officials virtually free rein.
Justice Stevens’ statement that “[p]romoting economic development is a traditional and long-accepted function of government” is especially telling. According to the Constitution’s Framers, the function of government was not to foster government plans for economic development but to protect individual rights against violation by the state. The Kelo decision reverses the constitutional priorities, placing government power first, and individual rights second. It presumes that government has a fundamental right to rule—to do what it pleases with people and the product of their labor. More than 80 years ago, one of Lochner’s loudest critics, law professor Thomas Reed Powell, looked forward to this when he rejected Justice Sutherland’s admonition that freedom is the general rule. “[R]egulation has long since become the rule, and freedom the exception,” he retorted. “Whence, then, comes the rule that Mr. Justice Sutherland reveals? Needless to say, it comes from Mr. Justice Sutherland. It represents his personal views. . . . Against this presumption in favor of individual freedom from legislative restraint, we may set the presumption in favor of legislative freedom from judicial restraint.”91
Is There Such a Thing As “Activism?”
In The Myth of Judicial Activism, Kermit Roosevelt resoundingly claims that there is no such thing. That term is only “a rhetorically charged shorthand for decisions the speaker disagrees with,”92 and it stems from a misconception about the nature of judicial work. In Roosevelt’s view, those who accuse judges of activism wrongly assume the Constitution contains an unambiguous meaning which can be applied directly to cases without any interpretive gloss. But most constitutional provisions are actually general, especially the most important and far-reaching ones, such as the Equal Protection or Due Process Clauses. These require some intermediary between the facts of the case and the general constitutional language to determine whether or not a government action has violated the Constitution. This gap is filled by “doctrine”—the body of law that interprets the general language and applies it to particular circumstances. But doctrine must never be confused with the actual meaning of a constitutional provision, Roosevelt continues. The doctrine that grows around a constitutional provision over the years may end up being either overinclusive or underinclusive, accomplishing either more or less than the actual aim of the provision.93
There may be several reasons that courts adopt a doctrine that does not precisely fit the meaning of the Constitution’s words, but for Roosevelt the most important is institutional competence. If other branches of government are better suited to address a given topic than is the judiciary, then courts should
leave that matter generally to the other branches, even where doing so means that the other branches will sometimes act unconstitutionally. But where no other branch is more qualified, courts should take a firmer position and limit the discretion of the others, even if they might have acted properly without judicial oversight. This happens when courts employ a high standard of review like strict scrutiny, which curbs the power of Congress or the president. This “over-enforce[s]” the Constitution by restricting lawmakers more than necessary. But when courts use a lower-level standard such as rational basis, they “underenforce” the Constitution and give legislatures more leeway than its words really authorize.
Roosevelt acknowledges that both paths have their risks, but in his view courts should normally choose the underenforcing path and defer to legislatures because “a decision erroneously striking down a law is harder to correct than one erroneously upholding a law.”94 Only where history or institutional handicaps demonstrate that the democratic process cannot be trusted to “balanc[e] the costs and benefits” of legislation should courts apply a higher level of scrutiny.95
Roosevelt’s argument fails for four reasons. First, it is premised on a fatally simplistic notion of how legislatures work. Elected officials do not simply weigh the costs and benefits of legislation: they are subject to pressures that put minorities—and sometimes even majorities—at an inherent disadvantage. Political entrenchment and personal influence, the benefits of incumbency and name recognition, and many other factors tilt the legislative process against minorities and individuals in ways that have nothing to do with the merits of legislative proposals. Faithful enforcement of the Constitution can help redress these problems. Second, it is not true, as Roosevelt claims, that the dangers of wrongly annulling a law exceed the dangers of wrongly upholding it. The risks are at least equal, and under-enforcing the Constitution may pose unique problems that do not exist when a court “overenforces.” Third, the role of the judiciary is to determine whether a law is constitutional—not, as Roosevelt would have it, to decide when legislatures are “competent” enough that their constitutional infractions can be treated leniently. Finally, one cannot determine whether a legislature is capable of making proper decisions without reference to underlying moral and political values—yet Progressive constitutionalism is built on avoiding such questions.
Underenforcing the Constitution can be extremely dangerous. Courts can wreak havoc by ignoring the primacy of liberty and allowing the legislature too much leeway in the name of democracy. Indeed, this can do violence to democratic procedures themselves. Consider Guinn v. Legislature of Nevada.96 In that 2003 case, Nevada governor Kenny Guinn, unable to wrangle the constitutionally required two-thirds vote in the state legislature to support his proposed tax increase, asked the state supreme court to issue a writ forcing lawmakers to approve his budget. Reasoning that without a budget the state could not fund its schools, and that the state constitution guaranteed citizens a system of free public schools, the Nevada Supreme Court granted the writ and ordered the legislature to disregard the two-thirds requirement imposed by the state constitution and “proceed expeditiously . . . under simple majority rule.”97 The justices declared that “[w]hen a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield.”98
This conclusion flies in the face of centuries of constitutional law. Lawyers have developed principles of constitutional interpretation—including the rules that more recently enacted or more specific laws take precedence over older or more general ones—in part to limit the power of courts.99 Yet the justices ignored these rules and, in a decision that echoes Justice Breyer’s balancing approach, ordered the legislature to put aside the constitutional procedures so as to “preserv[e] the democratic process” and allow the “majority of legislators, representing a majority of the citizens of this state, [to] make decisions on the services to be provided.”100 They erased an explicit limit on lawmaking power because they considered democratic majoritarianism more important than the Constitution’s actual language—language the people adopted in order to protect the rights of minorities against that very majoritarianism. By forsaking the two-thirds rule as a mere “technicality,” the judges gave themselves discretion to “balance the interests” they considered relevant and ultimately to control the outcome of the political process, all in the name of democracy and deference to the legislature.
That decision—which was quietly overruled only a few years later—is just one extreme example of the way judges can abuse their power by failing to enforce limits on democratic processes as well as by wrongly interfering with those processes. They can corrupt the constitutional order not only by being too “active” but also by underenforcing constitutional restraints in the name of democratic objectives.101
Public Choice and Factions
Roosevelt’s basic argument for judicial deference is that the legislature, whatever its imperfections, is better suited than are other branches that weigh the costs and benefits of proposed legislation, to craft statutes that satisfy more members of the public, and to solve problems with the least amount of trouble. This is probably true, but we should not ignore the significant dangers of representative government. Legislators are agents who exercise delegated power, and they are often self-seeking or biased in ways that betray their trust and harm the people. Public-choice theory demonstrates that when a legislature has the power to redistribute resources between groups in society, that power will become a valuable commodity over which private interest groups will struggle for control. The greater the potential rewards from favorable legislation, the more time and money these factions will invest in trying to persuade lawmakers to act in ways that benefit them—the rent seeking discussed in Chapter 1. Meanwhile, the costs of wealth redistribution are widely dispersed among taxpayers, and its benefits are highly concentrated on a few lucky recipients of government favors. When each taxpayer loses a few pennies to support a program that grants tens of millions to a small class of beneficiaries, there will be far more lobbying in favor of that program than against it, regardless of its merits or demerits.102
Roosevelt is silent about rent seeking. Although he acknowledges that there are “cases in which there are reasons to doubt that the legislature is acting in good faith,”103 he does not suggest a way to detect such cases. This is a critical matter, because rational-basis scrutiny, with its extreme deference to the legislature and its disregard for facts, blinds courts to the self-seeking or bad faith of legislative decisions. Consider Dukes v. New Orleans,104 in which the Court employed an extreme version of rational-basis scrutiny to uphold an ordinance that banned the sale of food from vending carts in the Crescent City’s French Quarter, but grandfathered in a single existing vendor, Lucky Dogs, Inc.105 The ordinance bore all the traits of special-interest lawmaking, designed to benefit a single firm at the expense of competitors and the consuming public. Lucky Dogs was not required to maintain the current appearance of its vending stands or to stay in the same location,106 and the ordinance did not impose any other kinds of regulations on its performance or appearance. The restriction merely conferred a monopoly on a single business. Although recognizing that city governments have broad discretion to regulate the economy for the public welfare, the court of appeals struck the ordinance down as an arbitrary deprivation of liberty. It acknowledged that grandfathering in existing businesses may be appropriate in some instances,107 but not here, because the grandfather provision bore no relationship to the ordinance’s stated purpose of preserving the small-town atmosphere or the aesthetic experience of visiting the tourist destination. There was “simply no suggestion that eight years’ experience in the pushcart hot dog business . . . is necessary or helpful to better hot dog salesmanship, or that it instills in the licensed vendors (or their likely transient operators) the kind of appreciation for the conservation of the Quarter’s tradition that would move them to refine their methods of operation.”108
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