Tim Sandefur has an interest post, discussing areas where the judiciary is conviently unable to determine what the public interest in cases involving economic liberty.

What I wish I’d added was that the Court doesn’t seem to have a very hard time discerning, or trying to discern, the public interest when it comes to laws that censor the press, or that intrude on the right of sexual privacy, or on such legal doctrines as state sovereign immunity or the dormant commerce clause. Of course, the cases aren’t easy, and there’s room for reasonable debate as to the correctness of these decisions, but the justices rarely if ever say that the public interest in free speech or freedom of religion is so complicated that serious enforcement of these rights should be replaced with deferential review like “rational basis.” Instead, the Court remains by and large committed to the text of the Constitution and the classical liberal principles that stand behind that text. Why is it that only here, in the realm of economic legislation or wealth redistribution, it’s suddenly so hard to do the same thing? Mighty convenient that in this realm, the Court is unable to really distinguish legitimate public interest legislation from illegitimate private interest favoritism! The Court distinguished mere arbitrary favoritism from genuine public interest in Romer, Lawrence, and Granholm v. Heald.Even in a few rare cases involving economic liberty, they’ve been able to make that call, as in Schware. Maybe they were wrong in these cases, but they did not find the analysis unworkable on principle, or throw up their hands and go home. Yet when it comes to protectionist occupational licensing, or the meaning of “public use” in eminent domain, suddenly the Court’s in no position to judge legitimate from illegitimate uses of government power? I don’t buy it. As Justices Scalia and Thomas said in one case, this singling out of economic liberty for anything-goes “rational basis” review is obviously about politics, not about neutral legal analysis.,

I have raised similar questions in a work I am developing about “intent.” Why are Courts willing, or unwilling to scrutinize governmental purposes (and thereby public interests) in some areas, but not others.

The concept of legislative purpose fascinates me. Specifically, how, and when does the Supreme Court sniff out Congressional purpose? A few primary areas are:

• in dormant commerce clause cases, where the court sniffs out “protectionist effects”
• in equal protection cases, where the court sniffs out “invidious purposes”
• in establishment cases, where the court sniffs out a “secular purpose” (I have written a bit about this last one in This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose)

In some future article, I want to compare how the Court finds intent in these different cases, and perhaps theorize why different approaches are used for different areas of the law.

This also aligns with my discussion of judicial engagement in the Constitutionality of Social Cost. Why do Courts choose to engage certain constitutional areas, and abstain from others?