Should Americans have to justify their freedom to the government, or should the government have to justify its restrictions on freedom to Americans? That question lies at the core of an ongoing debate amongst supporters of limited government about role of the courts in enforcing the Constitution. Over the past week, scholars Randy Barnett, Ed Whelan, and Roger Pilon have taken part in a vigorous but fruitful exchange--an exchange prompted by a column by George Will. In that column, Will, drawing upon a recent speech by Barnett, argued that Republican presidential candidates should take sides in an intramural argument about whether judges should engage in "rigorous judicial protection of certain individual rights," requiring the government to "justi[y] its restrictions as necessary and proper," or instead adopt a posture of "judicial restraint," presuming legislation to be constitutional until proven otherwise. Whelan responded to Will's column, defending judicial restraint; Barnett and Pilon then responded to Whelan, defending judicial engagement.
While I am in substantial agreement with Will, Barnett and Pilon, I want to focus on a particular passage in Whelan's initial response to Will. Whelan writes:
[M]ost contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don't see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).
Barnett and Whelan disagree concerning whether or not conservative "restraint" advocates in years past would accept this formulation. But setting that debate aside for a moment, it's worth asking whether supporters of limited government should object to an approach according to which legislation is upheld when its unconstitutionality is not "sufficiently clear." My answer is yes: there are compelling reasons to object to the presumption of constitutionality advocated by Whelan.
Let's review the present state of judicial review. In the vast majority of constitutional settings, governmental restrictions on individual liberty receive an effectively irrebuttable presumption of constitutionality. Under the so-called "rational basis test," the default standard of review in constitutional cases, courts make no effort to identify the government's true ends, do not require the government to back up its factual assertions with evidence, and may even assist the government in hypothesizing justifications for its actions. But if legislation is found to trench upon a "fundamental" right or contain a "suspect" classification, heightened judicial scrutiny is triggered. Under heightened scrutiny, the government must demonstrate, with credible evidence, that it is pursuing constitutionally proper ends using constitutionally appropriate means. Although the Court initially applied heightened scrutiny only to rights specifically listed in the Constitution's text, like speech and religious exercise, it later conferred "fundamental" status on various unenumerated rights on an ad hoc basis, including the right to marital privacy, the right to travel, and the right to guide the upbringing of one's children.
In practice, the difference between rational basis review and heightened scrutiny is often the difference between meaningless and meaningful judicial review. When legislation is invalidated under rational basis review, it's a noteworthy occurrence. At the Institute for Justice, we know the difference between rubber-stamp rational basis review and, well, everything else, from experience. The difference between the judicial review applied in our economic liberty cases (litigated under the rational basis test) and our speech cases (litigated under heightened scrutiny) is often staggering. In a particularly galling recent decision, a Second Circuit Court of Appeals panel, applying the rational basis test, upheld a rule stating that only licensed dentists can shine an low-volt LED lamp at the mouth of a customer during a teeth-whitening procedure. Judge Guido Calabresi, writing for himself and two other justices in Sensational Smiles, L.L.C. v. Mullen, stated that even if the rule was only designed "[t]o protect the monopoly on dental services enjoyed by licensed dentists" and did nothing to protect public health, it would still pass constitutional muster. The Second Circuit's analysis (if it can be called that) was categorically different from that of the D.C. Court of Appeals in Edwards v. District of Columbia, involving a tour guide licensing scheme that essentially made it illegal to talk for a living without paying the government money and passing a history exam. Recognizing the First Amendment interests implicated by the scheme, the panel in Edwards applied heightened scrutiny and invalidated the scheme after finding the record "wholly devoid of evidence" that imposing the scheme actually furthered the district's asserted interest in preventing harm to consumers--or that such harm even existed.
How would Whelan's approach differ from the status quo? Whelan would adopt a presumption of constitutionality in every constitutional case, including cases involving "fundamental" rights. In every case, judges would use originalist methodology to determine whether the challenged government conduct is clearly unconstitutional. The challengers would bear the burden of demonstrating that the government's conduct violates a specific constitutional prohibition. If they fail to carry their burden, the conduct would be upheld. In the case of unenumerated rights, Whelan's presumption of constitutionality would be conclusive. To my knowledge, Whelan does not recognize any unenumerated rights. Neither the right to marital privacy, nor the right to guide the upbringing of one's own children, nor the right to try potentially life-saving drugs would receive judicial protection. Innumerable exercises of freedom that are not listed in the Constitution in bullet-point form could, therefore, be extinguished on the basis of pure legislative will.
I'm not quite sure whether Whelan's general presumption of constitutionality would be as strong as that currently afforded to ordinary legislation under the rational basis test, but Whelan's approach would seem of necessity to be more favorable to the government than heightened scrutiny, which extends no presumption of constitutionality. That is to say, Whelan's approach would be more lenient towards the government than the current standard of review applied to restrictions on speech, laws that target specific religious practices for discriminatory treatment, and gun control laws, all of which trigger heightened scrutiny because they implicate fundamental rights. This should trouble anyone who suspects that the size and scope of government already exceeds constitutional limits by several orders of magnitude and is concerned that Leviathan's growth shows no signs of abatement.
And so we must confront the question of whether any presumption of constitutionality is justifiable. In a valuable recent article, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review, Professor Christopher Green finds that two basic sorts of rationales for a presumption of constitutionality were articulated by Founding-era jurists: (1) "the delicacy or weight of the occasion of judicial review, sometimes further explained by a disparity between the likelihood of correction of errors of omission and commission"; and (2) "literal respect for legislative judgments and processes of constitutional decisionmaking."
Neither of these historic justifications for a presumption of constitutionality holds up today. As Green observes, the second justification is only as strong as the confidence that can reasonably be reposed in the legislative process: "If the legislature is merely deferring to the courts, it makes no sense for courts to complete a deferential circle by deferring back to the legislature." That is to say, unless we think that legislatures are engaging in careful constitutional reflection, there is no constitutional decisionmaking process to which judges can reasonably defer. We are regularly confronted with evidence that such reflection rarely takes place (recall the haste with which the Affordable Care Act was drafted and the incredulity of then-Speaker Nancy Pelosi and others that it might raise bona fide constitutional questions), and a growing body of public choice scholarship supports the proposition that it does not.
The first rationale is also unpersuasive. Granting that judicial errors are not easily overcome, unconstitutional legislation wrongfully upheld by the courts will not necessarily--or even ordinarily--be repealed. More fundamentally, forcefully depriving someone of their liberty is a far graver thing than preventing a legislative majority from imposing their will upon someone. There is no parity between an individual's freedom to peacefully pursue their own happiness and a group of legislators' desire to squelch that freedom. As I have written elsewhere, the Constitution frequently refers to preexisting individual rights that the government is bound to respect and contains language connoting a concept of law that constrains government at all levels to act pursuant to rational, public-oriented principles, rather than the preferences of those in power. Government, according to the thoroughly Lockean political philosophy of the Framers, is a means to securing and enlarging individual freedom, not an end in itself. The only presumption compatible with our Constitution is thus a presumption of liberty.
Judicial engagement implements the presumption of liberty by ensuring that an honest, reasoned explanation is given in court when the government seeks to deprive us of our freedom. An engaged judge will make an impartial, evidence-based determination of the constitutionality of the government's actions, without deferring to the government, and will not uphold challenged legislation if the government has not carried its burden. The presumption of constitutionality that dominates our jurisprudence today is nothing more or less than an excuse for judicial abdication, and any presumption of constitutionality is inconsistent with the basic premises on which the law of the land rests. We can--and must--do better.