Judging the Constitutionality of Social Cost

July 6th, 2011
At the core of judicial decisionmaking is the constitutionality social cost–the balancing of individual liberty, and the negative externalities to society that may result from exercise of those rights.  In The Constitutionality of Social Cost I explored the constitutional dimensions of the social cost of liberty. In a work in progress, tentatively titled Judging the Constitutionality of Social Cost, I consider how judges judge the constitutionality of social cost (I assure you, my sequels are much better than Michael Bay’s).

This article will sketch out a hierarchy of the lens through which judges view individual liberty interests and social costs.

First, at the most abstract layer, is the definition of the liberty interest vs. the identification of the social costs. This rudimentary analysis, usually accomplished through mere rhetoric, sets the baseline for the understanding of the cost. Judges can either define the right broadly, or narrowly. Judges can expand the right from previous precedents, contract the right from previous precedents, or pretend like nothing has changed, but sub silentio modify the right (a common tact on the Roberts Court, see Barry Friedman’s work on Stealth Overruling). Even the source of the right–originalist, textualist, popular constitutional, or living constitutional–provides a basis to understand the right.

Second, peeling back to the next layer, is the assessment of the value of the liberty interest to the individual vs. the social cost of that liberty to society at large. The value of liberty to the individual is often defined in terms of dignity, autonomy, or the “right to define one’s own concept of existence.” Social costs are discussed broadly in terms of potential crime, violence, and harm to individual, society, to the nation, and even to our Republican form of government.

Third, judges next look to who the individual exercising the liberty is. Specifically, is the nexus between the individual’s exercise of liberty tighly linked, or sufficiently attenuated, from the risk of social costs? Is a Judge willing to pre-emptively limit a constitutional right (think ex ante prior restraint) or is she willing to incur harm to society before clamping down on the liberty interest (ex post). This determination ultimately boils down to the individual’s propensity for violence–is she dangerous?

Fourth, judges scrutinize the social costs. Judges favoring the liberty interest, exhibit skepticism about the alleged costs (this roughly mirrors traditional strict scrutiny analysis). Judges hung up on the social costs will defer to findings of legislatures, and even experts not involved in the legislative process, in order to focus clearly on these negative externalities. This raises broader questions about the competency of judges to consider empirical data as experts (is it common sense?), and appellate courts taking judicial notice of disputed statistics found in amicus briefs (and even those not submitted in briefs) that were not present in the trial record.

This analysis shows that on different issues, the same Justices take wildly differing views. Awareness of these approaches, at four levels of abstraction, alerts readers of how a particular Justice will treat a particular liberty interest. Gaining a deeper doctrinal understanding of individual liberty and social cost illuminates these disparate views, and permits a sober assessment, and a call for principled, and consistent jurisprudence at the Supreme Court.