Roosevelt contends that courts should defer to legislatures in cases involving economic freedom and property rights because legislative choices “are subject to review and correction through democratic politics in a way that judicial decisions are not.”115 But this is what Professor Robert McCloskey called “the amiable fiction”—the myth that victimized minorities can persuade the majority to “throw the bums out.”116 In fact, most victims of eminent domain (like Susette Kelo) and most workers whose right to earn a living is violated by economic regulations (like Joseph Lochner’s employee, Aman Schmitter, or the would-be hot dog vendors of New Orleans) are relatively powerless, and can only rarely hope for legislative protection—or even attention.117 The fiction becomes even less amiable when we reflect on the many ways in which elected officials entrench themselves—through gerrymandering, campaign finance regulations, and other devices that protect incumbents against challenge.
Worse still, most of the rules and regulations that affect the rights of ordinary Americans are not laws written by elected lawmakers but regulations imposed by unelected administrative agencies that wield broad authority to interpret their own commissions, write their own regulations, and enforce their own rules in hearings overseen by their own agents. These bureaus are not accountable to the voting public in any realistic sense; they are generally beyond the control even of an affected citizen’s elected representatives. Yet courts review their actions with a lenient, deferential attitude, under the doctrine of Chevron, U. S. A. Inc. v. Natural Resources Defense Council, a precedent that gives agencies power to interpret their mandates as expansively as they want except in the most extreme cases.118 In short, the modern administrative state has outstripped the quaint model of conscientious legislators deliberating about the public good, which might have justified a court in leaving citizens to the political process for protection. The idea that the people can “vote the bums out” if they dislike government policy is simply unrealistic. And the Founders foresaw this, at least enough to design a constitutional separation of powers and a system of checks and balances.
Advocates of “Footnote Four” jurisprudence have identified certain classes of legislative behavior that do not deserve judicial deference, but they have done so less out of a concern for advancing the primary constitutional value of individual freedom than out of a belief that some legislative acts pervert the democratic process. Roosevelt identifies racially discriminatory laws119 and laws that discriminate against people born out of wedlock120 as examples of biases that should invoke more effective judicial protection. But those prejudices are only the most obvious examples of the broader problems of rent seeking. In such instances, legislative majorities have burdened disfavored groups through the legislative process for their own benefit or out of simple pique. If judicial skepticism is warranted in those cases, then why not in cases involving other disfavored minorities, such as private property owners, entrepreneurs, or bakers who want to work overtime? If courts should refuse to defer whenever the legislature is subject to biases that put particular minorities at a disadvantage, the same should apply to other forms of discrimination. The would-be hot dog vendors in New Orleans, or landlords in New York or San Francisco,121 are every bit as vulnerable to exploitation and unjust exclusion as are, say, religious minorities—possibly more so, given the greater profits that politically influential groups stand to reap by burdening them.122 To deny them judicial protection and throw them on the mercies of the democratic process is essentially to deprive them of the security of law. This is just what the Constitution, with its basic principle of the primacy of liberty, was written to prevent.
Roosevelt’s failure to address these issues is particularly glaring in his discussions of Lochner and Kelo. Although he sees Lochner as “a good faith mistake rather than a deliberate one,”123 he goes on to argue that the Court should have sustained the maximum-hours legislation because in a modern, industrialized society, “government regulation might be necessary to avert clashes between labor and capital.”124 This is done in the name of “equalizing” the “bargaining power” between employer and worker; and “once the question becomes whether redistribution of bargaining power serves the public good, the superior competence of legislatures becomes evident, suggesting the modern deferential approach.”125
But this makes no sense. Legislatures can be expected to say that anything they do serves the public good.126 If a court does not take account of the rent seeking that warps the legislative process, its deference will render the judge powerless because legislatures will merely declare that their unconstitutional acts benefit the general public, and thus escape constitutional constraints. This is just what happened in Kelo.127 Roosevelt believes that that case was correctly decided because “the question of whether the benefits of a particular government act exceed its burdens is one that legislatures are generally better at answering.”128 But the Constitution does not allow legislators to approve whatever law they think has greater benefits than costs, let alone to “do good” in whatever manner they see fit. Rather, it gives government a limited authority to promote the public good within boundaries—boundaries that include the Fifth Amendment’s Public Use Clause, which forbids government taking private property for private use.
Roosevelt’s attitude toward Lochner and Kelo raises the inescapable question: why should courts apply strict scrutiny in some cases and deferential rational basis in others? If deference is good enough for economic liberty and private property rights, why is it not acceptable in cases involving religious liberty or racial discrimination? What factors indicate that a court should distrust the legislative process sometimes, but not other times? Roosevelt’s answer here is unsatisfying. Laws infringing the rights of women or of blacks were enacted by legislatures that “contain very few blacks and women,” he writes, and given the long history of discrimination against these groups, it is likely that such laws were motivated by “reprehensible” attitudes. Further, “the political power of blacks and women may be insufficient to prompt correction” of such decisions.129 Also, lawmakers are typically immune from such discriminatory legislation themselves.
These iniquities are serious, to be sure, but the same could be said of the condemnation in Kelo or the restriction on employment contracts in Lochner or the hot dog monopoly in Dukes. Legislatures tend to be dominated by lawyers, intellectuals, and activists, rather than practicing businessmen; legislators’ homes are rarely threatened with the use of eminent domain, and none of them are struggling to make a living selling hot dogs on the sidewalk. The history of politics is replete with legislative action targeting businessmen or private property owners, and their relative political power is unlikely to prompt the correction of wrongful legislation—particularly given the effects of rent seeking.130 Lochner, Kelo, and Dukes cannot be shrugged off by claiming that the laws challenged in those cases advanced the public welfare—since legislatures that persecuted blacks and women said the same thing about their acts.
Roosevelt’s legislative-bias theory weakens still further when he begins fiddling with the relevant minorities. In explaining why courts should protect abortion rights against legislative interference, for example, he writes that
[t]he question is how well the legislature can be expected to represent the interests of pregnant people. . . . If we focus the inquiry more narrowly on those who actually seek abortions, the case for deference becomes even weaker. These people . . . are . . . generally speaking, younger women. And, again speaking generally, they tend to be poor and unmarried. So the question comes down to whether we trust legislatures to weigh appropriately the interests of young, poor, unmarried women.131
But if we can manipulate the categories of affected persons in this way when deciding whether a legislature can be trusted, then the scope of judicial discretion becomes indefinitely flexible. Opponents of abortion, after all, would be quick to argue that the relevant minority is not pregnant women, but unborn children, who are not members of any legisla
ture on earth and have no realistic opportunity to defend themselves in the legislative process. The question could plausibly be put: whether legislatures can be trusted appropriately to weigh their rights, assuming they have any.132
The same problem applies to Roosevelt’s other examples. Prohibitions on working more than 10 hours a day in a bakery, or against opening new hot dog stands, are likely to fall hardest on poor, underrepresented immigrant workers who need the work to make money to support their families. How well can a legislature be trusted to weigh their interests? The use of eminent domain for private development tends to fall hardest on the poor and members of racial minorities, who have insufficient political weight to defend their property rights against wealthy developers and ambitious local politicians.133 Virtually every plaintiff challenging the constitutionality of a law might be classified into any number of minority groups by race, sex, income, occupation, or otherwise. By defining the relevant characteristics one way or the other, it is possible to describe almost any litigant as a powerless minority—or, with equal plausibility, to deny that claim. Roosevelt does not explain why one classification should take priority over another, and therefore gives no guidance as to why courts should defer in some cases but not in others. What makes some types of legislative intrusions “reprehensible” and others not?
Of course, none of this is meant to suggest that judicial intervention is the all-purpose solution for rent seeking.134 Courts cannot stop every instance of special-interest legislation, nor should they try. But the classical justification for an independent judiciary has always been that it adds an extra layer of security against this lamentable tendency of representative government.135 As the Supreme Court has put it, the judiciary has a “special role in safeguarding the interests of those groups that are ‘relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’”136 This should include not just racial minorities or women—courts also ought to protect businessmen, property owners, and any other group that lacks the influence necessary to convince lawmakers to respect their rights.
Wrongly Upholding Laws Is Just as Dangerous as Wrongly Invalidating Them
Roosevelt posits that more danger results when courts overzealously strike down laws than when they allow unconstitutional laws to stand. But this is dubious. Legislatures are well armed to defend themselves from mistaken judicial decisions. They can check the courts by rejecting judicial appointments, stripping judges of jurisdiction, or creating new, more sympathetic administrative bodies to review disputes. In the last resort, they can simply ignore judicial decisions they dislike. Presidents and Congress have done this more than once in American history.137 More significantly, lawmakers can re-enact a law that the courts have invalided after removing or revising the invalid elements. This is far easier than Roosevelt seems to think. In 2003, after federal judges held that the Federal Trade Commission’s “do-not-call” registry138 exceeded the agency’s statutory mandate,139 Congress enacted legislation the same day to grant it this authority. The president signed that bill only four days later. Such legislative celerity may be unusual, but it shows that legislatures can clear judicial obstacles, particularly where their policies actually do enjoy widespread support.
By contrast, when the Massachusetts Supreme Judicial Court held in Goodridge v. Department of Public Health140 that the state Constitution required Massachusetts to permit same-sex marriages, many reacted furiously to the court’s “activism” and legislation was introduced to overturn it.141 But that legislation never passed. This inaction, Roosevelt contends, is part of “a gradual process of acceptance by the general public,”142 as it learns that same-sex marriage will not bring about social catastrophe. Roosevelt is right that one reason for the failure to overturn Goodridge was because the decision was well thought out, but another reason is that legislation to overturn it would seriously infringe on the rights of a significant minority of Massachusetts citizens. While legislatures can rapidly correct wrongful court decisions—or decisions they perceive as wrongful—it is not so easy to overrule a judicial decision when doing so would endanger the rights of a significant part of the citizenry. Nor should it be. Legislatures ought to be hindered in their attempts to violate individual rights. By forcing lawmakers to rethink questions and meet a higher burden, courts can help promote the protection of liberty. Thus, the risk of an overly active judiciary is often outweighed by its benefits.
Wrongly upholding an unconstitutional law is at least as hazardous as wrongly striking down a valid one. Compare any two cases from the list of infamous cases, one from each category. Lochner, for example, is widely regarded (though not by Roosevelt) as among the Supreme Court’s worst decisions—allegedly an example of judicial activism that struck down legislation that ought to have been upheld. But whatever one thinks of the decision, it is hard to see why it is categorically worse than such notorious instances of excessive judicial restraint as Buck v. Bell143 or Kelo v. New London. The consequence of Lochner was to block a particular attempt by the state of New York to forbid bakers from choosing to work more than 10 hours per day. Even if that decision was wrong, it at worst left employers and employees in the status quo ante, while the legislature remained free to adopt other worker-protection laws that respected the workers’ right to choose the terms of their employment. Buck, by contrast, allowed agents of the state to force a young Virginia woman named Carrie Buck to undergo a sterilization operation against her will, and to allow other states to permanently deprive countless others of their rights to bodily integrity and childbearing. And Kelo ended with the devastation of a neighborhood and a precedent that renders homeowners and businessowners across the United States vulnerable to condemnation essentially whenever local officials see fit.144
True, a court decision that mistakenly strikes down a constitutionally valid law may result in a precedent that stymies the legislature, but that risk is relatively remote since, as James Madison observed, the legislative branch is inherently stronger than the other branches. The powers of a legislature are “more extensive, and less susceptible of precise limits” than those of the judiciary or the executive, he wrote in The Federalist, and the legislature can “mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” Legislatures represent the majority, and are motivated by timely political controversies, while courts often speak on behalf of unpopular minorities and operate much more slowly. Thus, he warned, legislatures are constantly “extending the sphere of [their] activity, and drawing all power into [their] impetuous vortex.”145 They are much more dangerous than courts.
It is still possible, of course, that a legislature can be effectively blocked from achieving important goals by an erroneous judicial precedent. But the reverse is also true: a decision wrongly upholding an unconstitutional law can result in a precedent that encourages further legislative abuse, and that decision can become part of the cultural background, making it vastly more difficult to overturn later. Consider Plessy v. Ferguson.146 It took decades to erase this precedent, precisely because the Supreme Court’s blessing on segregation encouraged further discriminatory laws and caused greater cultural entrenchment of racism. Society often comes to consider issues settled once the Court has spoken, often leading to copycat legislation in other states—and then another set of rules designed to prevent evasion of the previous law. The longer such laws remain on the books, the more reluctant courts become to overturn practices that have become widespread in the years since the prior decision.147
A judicial decision wrongly striking down a law can do serious damage. But legislatures and presidents are well equipped to defend their prerogatives against the judiciary, while individuals whose rights are violated by the government rarely have any realistic recourse if the courts fail to protect them. When the Supreme Court struck down popular New Deal legislation in the 1930s, Franklin Roosevelt’s threat to pack the Court helped pres
sure the justices to reverse themselves. That, combined with his judicial appointments, meant that by the end of the decade, the Court had almost entirely accepted his preferred Progressive constitutional theory.148 And in 2005 and 2006, Congress effectively barred courts from interfering with the operations of the Guantanamo Bay detention center, first by stripping courts of jurisdiction to hear cases brought by inmates and then, when the Supreme Court held that it could still hear some of these cases, by barring the president from releasing detainees.149 The other branches thus have leverage against the courts. But people like Susette Kelo or Carrie Buck, whose rights are trampled upon by legislatures and ignored by courts, have no such checks or balances. Their only resort is the “amiable fiction” of asking politicians to change their minds.
The general judicial presumption in favor of upholding legislation clashes with our constitutional system’s deeper commitments. In criminal law, we presume people innocent until proven guilty because it would be logically impossible to force them to prove a negative and because it is preferable to allow a guilty person to go free than to punish one who has committed no crime.150 But a constitutional presumption in favor of upholding doubtful legislation risks infringing these principles. True, economic regulations are usually less severe than being convicted of a crime. But forcing someone to “to negative every conceivable basis” in order to prove such a regulation unconstitutional, and presuming that the government may limit a person’s freedom until proven otherwise, still imposes the kind of unfairness our criminal law rejects.151 It allows government to deprive people of liberty unjustly. As one court put it, “We cannot believe that construction a sound one, which indulges every reasonable presumption against the citizen, when the legislature deals with his rights, and gives him the benefit of every reasonable doubt, when his life and liberty are in jeopardy before the courts of the country.”152
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