I had the honor of contributing to a symposium issue of the NYU Journal of Law & Liberty on Richard Epstein’s recent magnum opus. My piece is called The Burden of Judging. I use this occasion to write a hybrid review, and adaptation of three important books in constitutional law.  The Classical Liberal Constitution by Richard Epstein, Restoring The Lost Constitution: The Presumption of Liberty by Randy Barnett, and Terms of Engagement by Clark Neily.

This article, perhaps more than others, sketches out some of my broader theories of constitutional law, influenced heavily by all three authors over the years. Epstein’s magnum opus offers a systematic account of how our Constitution is built on classical liberal philosophy, and how the Supreme Court’s artificial bifurcation of our rights is fatally flawed. Barnett’s massively influential restatement of constitutional law articulates that our Constitution is animated with a presumption of liberty for all rights, which courts are to enforce. Neily’s riveting narrative recounts how actual lives are harmed by judicial deference, and calls for “judicial engagement” to protect economic liberty.

After reviewing these three insightful works, I develop two complementary accounts of how judges decide cases: “public choice constitutionalism,” and “the burden of judging.”

First, public choice theory presumes that many laws are the end result of “interest group” politics, aimed at concentrating benefits on favored groups and dispersing the costs. Public choice constitutionalism provides a judicially-imposed check to this rent-seeking and capture. There are shades of public choice constitutionalism embedded in our Constitution, as evidenced by the text and history of the doctrine of Enumerated Powers and Federalism, the Contracts Clause, the Takings Clause, the 14th Amendment, and elsewhere in our founding documents such as The Federalist. Through engaged judicial review, public choice constitutionalism can serve to correct “government failures” in the sense that judicially-enforced antitrust law corrects “market failures.”

Second, based on a refined understanding of public choice constitutionalism, I provide an alternate understanding to the Supreme Court’s balkanized approach to judicial review. Beyond the perfunctory task of labeling a right fundamental, or noting that strict scrutiny applies, the real judicial heavy lifting occurs at the outset—placing a burden on either the individual or the government, and calibrating the weight of that burden. Viewing scrutiny in terms of who bears the burden, and how strong the burden is, offers a more accurate description of the Supreme Court’s decisions when it avoids talking about scrutiny. More importantly, this theory helps to reconcile the Court’s varied opinions that meander among, or even disregard, the tiers of scrutiny. Instead of chiseling out the so-called tiers of scrutiny, accounting for these burdens serves as a more accurate descriptor of the manner in which governments and individuals have their constitutional rights either vindicated or vitiated. This task–not an easy one, but a necessary process that cannot be shirked–is the burden of judging.

Below the fold I paste the entire introduction of The Burden of Judging. I will write a few blog posts about this article in the near future, focusing on different attributes of rational basis review, how the Constitution enforces anti-rent-seeking governance, and how judges approach real and fake rights.

Constitutional law is built on the bedrock foundation that courts should defer to the democratic process, especially in the context of economic regulations, unless the law touches on certain “fundamental rights” or affects “discrete and insular minorities.” Three important books on constitutional theory challenge and emphatically reject this principle: The Classical Liberal Constitution by Richard Epstein, Restoring The Lost Constitution: The Presumption of Liberty by Randy Barnett, and Terms of Engagement by Clark Neily.

All three books powerfully plow through a dense hallowed ground that unites the theory and practice of judicial review, economic liberty, and our Constitution. Epstein’s magnum opus offers a systematic account of how our Constitution is built on classical liberal philosophy, and how the Supreme Court’s artificial bifurcation of our rights is fatally flawed. Barnett’s massively influential restatement of constitutional law articulates that our Constitution is animated with a presumption of liberty for all rights, which courts are to enforce. Neily’s riveting narrative recounts how actual lives are harmed by judicial deference, and calls for “judicial engage- ment” to protect economic liberty. Each work naturally compli- ments the others and springs from a shared intellectual fountain- head.

This article primarily focuses on Neily’s insightful and illuminating discourse on the costs of judicial deference and the need for consistent judicial engagement with all rights. My broader goal, though, is to pluck out the key strands from each book and to develop an account of how judges decide cases. Specifically, by building on the theory of judicial engagement, buttressed by our Constitution’s text and history, and viewed through the lens of “public choice constitutionalism,” I describe how and why judges assign burdens of persuasion to resolve cases. Instead of chiseling out the so-called tiers of scrutiny, accounting for these burdens serves as a more accurate descriptor of the manner in which governments and individuals have their constitutional rights either vindicated or vitiated.

Part I shines a revealing light on rational basis scrutiny (what Neily dubs “make-believe judging”) and strict scrutiny (“real judging”). Through understanding the plights of those affected by occupational licensing exams—such as an impoverished widow unable to pass an unreasonable exam to become a florist—a human face is placed on the costs of judicial deference. Even laws that are clearly designed solely to protect special interests, without any discernable concern for the general welfare, will survive a challenge unscathed. Under rational basis review, courts are required to imagine reasons why the statute could be constitutional. And, under what Neily re- fers to as the “rationalize-a-basis” test, this is always sufficient to uphold the law. Such judicial deference, whether borne out of a naïveté of the political process or a willful disregard for what is actual- ly going on, emboldens governments to further expand their legislative powers into the sphere of individual liberty.

Part II explores the concept of judicial engagement and Neily’s rejection of judicial “restraint” and “activism.” Judicial restraint, with its intellectual pedigree stretching from Thayer to Bork to Wilkinson, leads to a wholesale disregard of constitutional rights deemed unimportant. Adherence to this theory has contributed to a breakdown of our constitutional republic’s structural bulwarks of federalism, separation of powers, and protection of individual liberty. The opposite rallying cry, judicial activism, is unfairly used to criticize an opinion one does not agree with. Further, charges of “activism” serve to unduly chill judges’ willingness to confront and engage with the real reasons behind the government’s action. Eschewing the shibboleths of judicial restraint and judicial activism, an engaged judge would consistently, in all cases, demand the government’s actual reason for violating a person’s rights and deter- mine if that reason is truly in the general welfare. If there is a poor fit between the government’s stated rationales for violating individual liberty and the actual effect of the law, an engaged judge would discern that they might not be the government’s real or only reasons for acting. This determination would be a factor in deciding whether to uphold or strike down the law. At bottom, the primary laws that would fall under judicial engagement are those that are purely dedicated to an illegitimate end, such as naked economic protectionism.

Part III unites the analytical frameworks of all three books to determine whether a law is truly in the public interest, or enacted for the benefit of a special interest: this is public choice theory. More precisely, each work applies some form of “public choice constitutionalism” to determine a law’s validity. Special interest groups, through the process of “rent seeking,” are able to “capture” the legislative process and procure laws that benefit them and/or harm their competition. There are shades of public choice constitutionalism embedded in our Constitution, as evidenced by the text and history of the doctrine of Enumerated Powers and Federalism, the Contracts Clause, the Takings Clause, the 14th Amendment, and elsewhere in our founding documents such as The Federalist.

Public choice constitutionalism disregards the standard account of the political process and presumes that many laws are the end result of “interest group” politics, aimed at passing laws that concentrate benefits on favored groups and disperse the costs. In this sense, public choice constitutionalism would correct “government failures” in the same sense that judicially-enforced antitrust law corrects “market failures.” Public choice constitutionalism expressly repudiates the reinforcement of representation theory underlying Footnote Four of Carolene Products. However, stripping apart Baptist and Bootlegger coalitions, such as those present in cases like Lochner v. New York but not Williamson v. Lee Optical, highlights the difficulty of public choice constitutionalism.

Building on Parts I through III, Part IV endeavors to re-evaluate and reconceptualize the tiers of judicial scrutiny in terms of burdens. Beyond the perfunctory task of labeling a right fundamental, or noting that strict scrutiny applies, the real judicial heavy lifting occurs at the outset—placing a burden on either the individual or the government, and calibrating the weight of that burden. Once this burden is placed, the die is loaded, and the adjudication can proceed according to plan. If the plaintiff has an unsatisfiable burden, she will lose. If the government has an unsatisfiable burden, it will virtually always lose. Everything that happens in between en- sures this outcome. This is the burden of judging. A proper understanding of public choice constitutionalism highlights this threshold inquiry. Viewing scrutiny in terms of who bears the burden, and how strong the burden is, offers a more accurate description of the Supreme Court’s decisions when it avoids talking about scrutiny. More importantly, this theory helps to reconcile the Court’s varied opinions that meander among, or even disregard, the tiers of scrutiny.

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