Judging the Constitutionality of Social Cost now on SSRN

September 19th, 2011

The abstract is here:

The tiers of judicial scrutiny represent the Supreme Court’s attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost — a factor that has been integral in the Supreme Court’s balancing of liberty and security — has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny, and judicial review more broadly.

The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and security costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety.

The Supreme Court employs the tiers of scrutiny when the liberty interests of an individual (or group of individuals) are weighed against the interests of the state to provide for collective safety (defined broadly as the police powers — health, safety, and morals). Scrutiny is effectively a question of burdens — which party’s interests receive judicial deference, and which party’s interests are met with judicial skepticism. Or, to state it differently, which party bears the burden of justifying its high social costs. These relationships are plotted on a graph I labeled the Social Cost Frontier. The frontier depicts judicial review and the relationship between the tiers of scrutiny and socialcost, with respect to Miranda, the exclusionary rule, the overbreadth doctrine, unprotected speech, and commercial speech.

Social cost further explains how the court shifts between the counter-majoritarian difficulty and representation reinforcement. Which branch of government is in the better position to assess social costs — the legislature, or the courts? Or more precisely, should the court defer to the state’s assessment of social cost, or defer to the individual’s assessment, or engage in an independent inquiry. Ultimately, this determination is largely informed by a given Justice’s view of liberty and safety costs with respect to Footnote Four of United States v. Carolene Products, and Professor John Hart Ely’s “representation reinforcement” theory of the Constitution. Even with the judiciary’s assumption of this role, certain cognitive and confirmation biases dictate that, in the words of Frédéric Bastiat, there are seen, and unseen costs by the Justices. The costs that are unseen, are often the costs that the Justice is inclined to disregard. How a Justice choose to see, and not see, certain social costs — rather than abstract terms like tiers of scrutiny, or equal protection, or due process — explains how some of the most important constitutional issues of our time can be so divisive.

The Supreme Court’s reliance on social cost, without ever fully defining it, illustrates the normative appeal of this rubric. No one likes costs, they’re bad. Identifying costs, and using them as a rationale for a judicial decision is quite attract. Yet, by failing to define these costs — and what considerations go into calculating them — the Court, and the academy, has unfortunately elided over an important jurisprudential step in numerous cases involving the Constitution. Further, by assuming the role of assessingsocial cost, and either grating the costs deference or skepticism, the Court has succeeded at its institutional aim at minimizing social cost in the absence of judicial intervention. For when either cost grows too large, the role — and need — of courts disappears. In their efforts to keep this balance in check, courts aim to maintain their legitimacy, and indeed relatedly, their need for existence. If courts step too far in either direction, their legitimacy, and place in society decreases

Let me know if you have any comments!