07/29/2016 01:01 pm ET Updated Aug 04, 2017

Yes, Judges Should Invalidate Irrational Legislation: A Reply to Greg Weiner

The American Constitution has been called "the most wonderful work ever struck off at a given time by the brain and purpose of man." It was authored by men who had surpassing confidence in the human mind--men who were convinced that people were capable of "establishing good government from reflection and choice," to the end that self-evident truths about human nature, discernible through reason, would be honored in social life. These same men knew well that the fundamental alternative to a government that is bound by rational principles is "a society under the forms of which the stronger faction can readily unite and oppress the weaker."

Now comes Professor Greg Weiner, who in a provocative article over at the Library of Law and Liberty argues that the very notion of "rational" legislation is a "myth" and that judges have no business seeking to determine whether assertions of government power over individuals are rationally justified.

Weiner contends that "libertarian constitutionalists" who "demand" that the "government be required to justify any restrictions on liberty as reasoned rather than arbitrary" are demanding something that is not only constitutionally unwarranted but actually absurd. He charges that libertarian constitutionalists rely upon "presumptions" that are "rhetorically appealing, intellectually attractive, and politically pernicious." In Weiner's view, complaints about, say, occupational licensing regulations that prevent would-be tour guides, florists, hair braiders, and interior designers from earning a living in entirely harmless occupations should be addressed to the same officials who issued those regulations, not to judges.

In what follows, I will explore the three "presumptions" that Weiner finds objectionable, each in their turn. I will then argue that constitutionalists--libertarian and otherwise--should not call for judges to abandon all inquiry into whether legislation is rational rather than arbitrary. Instead, constitutionalists should insist that judges are duty-bound to consistently engage in genuinely impartial, evidence-based rationality review, rather reflexively deferring to the government, as judges routinely at present when applying the so-called "rational-basis test"--the standard of review that is used to evaluate most assertions of government power over Americans' lives and livelihoods.

"Presumption" 1:

"[A] dual maneuver whereby the buffering mechanism of the political community--whose 'deliberate sense' acts through the government rather than the government's acting, as a foreign agent, on it--vanishes, leaving only the regime and the individual member of the community standing in opposition to one another."

What Weiner describes as a "maneuver" is an accurate description of the reality confronting any person who is burdened by a governmental enactment that they believe to be unconstitutional and to whose interests the broader "political community" is unresponsive. The history of constitutional law is in substantial part the history of individuals "standing in opposition" to regimes that are indifferent or even hostile to them. Myra Bradwell stood in opposition to the Illinois State Supreme Court when it denied her application for a law license because of her sex. Carrie Buck stood in opposition to the Virginia legislature when the superintendent of the State Colony for Epileptics and Feeble Minded, acting pursuant to the state's Racial Integrity Act, sought to forcibly sterilize her for eugenics purposes. Susette Kelo stood in opposition to the New London city council when it authorized a private corporation to bulldoze the working-class neighborhood in which she lived for "economic development." In each case, individual members of the community denied that those had wielded legal power on behalf of the political community had the legal authority to act as they did--and where the will of government officials "stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former."

There is no contradiction between affirming that members of a political community act through their agents in government, on the one hand, and recognizing that those agents sometimes act in ways that leave individual members of the political community "standing in opposition" to them, on the other. A lone individual may find that the "deliberate sense" of the political community is dead-set against him. Such circumstances are not ideal, and they can be terrifying, even tragic--but they do transpire. In such circumstances, courts offer individuals their last, best hope of legal recourse against unconstitutional government power.

"Presumption" 2:

"[T]he courts are the appropriate forum for the individual and the government to present their claims."

Weiner states that this presumption is "always contained, in question-begging fashion, in the premise of" arguments that the government be required to justify any restrictions on liberty as reasoned rather than arbitrary. For my part, I have pointed to Article III's provision for an independent judiciary that is empowered to decide cases "arising under the Constitution." I have argued that Article III's reference to "The judicial Power" incorporates a duty of independent judgment--a duty to impartially interpret and give effect to the law of the land without influence from either internal or external will. If indeed the Constitution requires that restrictions on liberty be reasoned rather than arbitrary, it seems obvious that those who are subjected to restrictions that they believe to be arbitrary ought to be able to present their claims in an Article III court.

Does the Constitution require restrictions on liberty to be reasoned rather than arbitrary? Absolutely. The structure of the government established by the Constitution is carefully designed to prevent government officials from exercising power that is not authorized by a prior principle of reason set forth in our written law. Our federal government has no inherent powers, only delegated (and therefore limited) powers--it cannot bind private citizens without pointing to an affirmative power grant in the Constitution. Reasons for action must be given, and not just any reasons will do. Judges are thus bound to evaluate assertions of federal power over individuals to determine whether they are justified by a constitutionally proper reason or rest only on the mere will of officials. As Chief Justice John Marshall put it in McCulloch v. Maryland, judges must determine whether the government's actions are "really calculated to effect any of the objects intrusted [sic] to the government" (emphasis added).

What of state governments? The Fourteenth Amendment's Due Process of Law Clause, which limits "State" power, indicates that individuals have rights that precede both state and federal power. No one can be "deprived" of "life, liberty, or property" that they do not possess in the first instance. Thus, any time state officials seek to effectuate such deprivations, they seek to take something from people that belongs to them--an unlawful act, unless it is consistent with "due process of law." The term "due process of law" in the Fifth and Fourteenth Amendments can be traced to the "law of the land clause" in Magna Carta, which Revolutionary-era lawyers and the authors of the Fourteenth Amendment understood to refer to a normative concept of law. According to this concept, not every government action is binding law--to qualify as law, an act of coercive power has to rest on more than the will of the powerful. It must be justified with reference to the purpose for which legitimate governments are "instituted among men" in the first place, namely, the security of the natural rights of all members of the public. Once again, reasons for action must be given, and not just any reasons will do. Judges are obliged to determine in appropriate cases whether they are dealing with law or "mere act[s] of power"--and to declare the latter void. The alternative would be to allow the politically powerful to put individuals in a condition similar to that absent government--to reestablish (as James Madison put it in Federalist 51) "under another name and a more specious form, force as the measure of right."

"Presumption" 3:

"Legislation--which in a regime devoted structurally to liberty is the product of a decentralized process of percolating compromises, not a top-down imposition of discrete reason-giving--ought to be, even can be, rational in any sense cognizable by a court."

Weiner's description of the legislative process conflates what Friedrich Hayek referred to as a spontaneous order--the paradigmatic example of which is a free market economy--with a constructed order. Government is, as Hayek put it, "a deliberate contrivance," and deliberate interventions in the spontaneous order of the market are indeed top-down impositions. It is thus correct to speak of legislation as being calculated to achieve particular ends. Statutes and regulations, unlike prices in a free market, do not emerge from uncoordinated human action--they are the product of human design.

Weiner's claim that judges cannot identify the ends of legislation is demonstrably false. Numerous areas of our jurisprudence rest upon, and make plain the truth of, the proposition that judges, no less than dogs, can tell the difference between being stumbled over and being kicked. So, too, can Weiner, who points to the patently protectionist legislation upheld by the Supreme Court in Williamson v. Lee Optical as an example of "what could rightly be called favoritism" rather than a genuine exercise of the state's police powers to protect the public from force and fraud. As documents (like contracts) can reflect a single purpose even though those who draft them have a variety of motives, judges can discern the ends of legislation through an objective inquiry into the terms of a statute or regulation, its operation, and its context (including the sequence of events leading to its passage) without reading minds.

What is remarkable--indeed, scandalous--is that effective rationality review often does not take place under the "rational-basis test," the default standard of review in constitutional cases. Weiner's discussion is limited to cases involving economic liberty, in which reflexive judicial deference to the government under the rational-basis test is perhaps most pronounced. But consider a case that the Supreme Court recently (and lamentably) declined to review (over a vigorous and persuasive dissent from cert denial by Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas): Storman's, Inc. v. Wiesman, involving Washington regulations that require pharmacists and pharmacies to dispense lawfully prescribed emergency contraceptives even if they have a sincerely held religious belief that doing so terminates a human life. The regulations allowed pharmacies not to stock or to deliver drugs and to refer customers to other nearby pharmacies for a host of business, economic, and convenience reasons--but not for reasons of conscience. Brushing aside evidence that the state deliberately singled out religious conduct, a Ninth Circuit Court of Appeals panel treated the regulations as "neutral" (concerning religion) and "generally applicable" and thus applied rational-basis review rather than heightened scrutiny. The panel upheld the regulations on the ground that the government had a legitimate interest in "ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications" and that the challengers had failed to "negat[e] every conceivable basis which might support [the rules]." This despite the fact that the government stipulated that "facilitated referrals do not pose a threat to timely access to lawfully prescribed medications."

It is routine for judges applying the rational-basis test to require litigants to negate "every conceivable basis" that might support the government's actions--that requirement comes from a leading rational-basis decision by the highest court in the nation. It is also profoundly irrational--and unconstitutional. It is irrational because it is logically impossible to negate a potentially infinite set of "conceivable" claims for which there is no evidentiary support. It is unconstitutional, insofar as it sees judges abdicating their duty to exercise independent judgment and denying litigants due process of law (which entails, among other things, a decision-making process that is impartial, grounded in credible evidence, and governed by rational principles of law.)

I applaud Weiner for recognizing that the rational-basis test deployed in Lee Optical and in other cases involving protectionist legislation operates as a means of "forc[ing] the issue of favoritism back into a legislative realm," rather than as a meaningful test of whether a "rationale for a law is adequate." But his proposal that judges should withdraw entirely from the field of rationality would have grave consequences for our already desiccated constitutional order. The Constitution does forbid government officials from depriving any individual of what rightfully belongs to them on the basis of mere will. Those deprivations do destroy homes, livelihoods, and even lives. The Constitution does require judges to distinguish between proper and improper governmental ends in cases. And judges are capable of, and duty-bound to, impartially pursue the truth concerning the lawfulness of the government's true ends and means, without deference to government officials' beliefs, desires, or unsupported factual assertions. If we are to vindicate the Founders' confidence in reason and enjoy the blessings of liberty that they sought to secure, such judicial engagement is essential.