The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: 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 improvident 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.
[...] 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. Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). See also Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185–86 (1935); Steffan v. Perry, 41 F.3d 677, 684–85 (D.C. Cir. 1994) (en banc).
This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified. See James Madison, Notes of Debates in the Federal Convention of 1787, at 39, 42 (W. W. Norton & Co. 1987). [. . .] But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.
[...] The judiciary justifies its reluctance to intervene by claiming incompetence—apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm—or deferring to the majoritarian imperative. [...] 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. [...] 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.” [...] 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 [economic] liberty deserves more respect—a lot more.
This is Randy Barnett's project. This is the Federalist Society's project. This is the Republican Party's project.
Lane writes:
[T]he United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a “living Constitution.”
Oh, so NOW we have a Living Constitution do we MR. Lane. NOW judicial activism is a-ok. Lane continues:
The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.
Earth to Charles Lane, the Constitution in Exile movement began long before "Obamacare" was dreamed up by Republicans two decades ago.
But at least we have some honesty now - the goal is to undo the New Deal. Lane may be a-ok with that. Most of us are not.
Speaking for me only
