Jeffrey Rosen at The New Republic tells everyone to be very afraid of a D.C. circuit case on milk distribution, Hettinga v. United States, in which a concurrence by Judge Janice Brown complains that "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 notes that the courts “have been negotiating the terms of surrender since the 1930s.” Rosen worries that jurists who belong to a New-Deal-dismantling, "Constitution in Exile" view of the law are on the rise, and that the overturning of the federal health care law might be just the beginning of a new era in constitutional jurisprudence:
In plain English, Brown was calling into question “broad-based entitlements,” such as Social Security and Medicare, and the “licensing restrictions” at the heart of regulations passed by the Federal Communications Commission and the Environmental Protection Agency. She concluded by citing Randy Barnett, the intellectual architect of the challenge to the health care mandate, and she reiterated that deferential review of economic regulations “means property is at the mercy of the pillagers.”
Brown’s concurrence was joined by Judge David Sentelle, another pillar of the Constitution in Exile movement. But more surprising was the separate concurrence of Judge Thomas Griffith, considered to be the most moderate conservative on the panel. Griffith refused to join his colleague’s “spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty,” but not because he disagreed with it—he said he was “by no means unsympathetic to their criticism.” Instead, he was demurring only because he was “reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.”
Why would a relative moderate like Griffith profess himself “by no means unsympathetic” to the views of the most radical partisans of the Constitution in Exile? Perhaps because the terms of legal debate have been so dramatically changed by Barnett. In less than two years, he has managed to transform the notion that the health care mandate was unconstitutional from a far-fetched idea into a principle that may soon be endorsed by all five of the Supreme Court’s conservatives.
PLF Liberty Blog rises to the bait, with "Rosen: pay no attention to the Constitution behind the curtain!
Of course, the whole point of a written constitution is to discipline wayward politics. The founding fathers did not choose to relegate all matters to resolution through politics; they chose to write a constitution that would place significant limits on politics—that would, as FDR appointee Robert Jackson put it, remove certain things entirely from the vicissitudes of political controversy. Not only did the founders understand this quite well, but subsequent generations did, also; the courts, for all their faults, upheld meaningful protections for individual rights against political interference. And where the courts went wrong, it was typically because they refused to apply those protections—as in Plessy v. Ferguson, for example, where a “restrained” judiciary decided to allow democratic politics to control instead of applying the legal discipline, or in Korematsu v. United States, where they chose not to be an “activist” Court, and allowed democratic lawmakers to have their way. It is, in fact, only in recent decades that federal judges have turned their backs entirely on just one class of individual rights—those rights involving private property and the individual’s freedom of economic choice. In that realm, they refuse to use the discipline of the Constitution to protect minority rights.
Nothing yet from Randy Barnett...
Photo: Hon. Janice Brown, D.C. Circuit Court of Appeals