Economic freedoms and the constitution.

• Author: Rosen, Jeffrey
• Position: I. Economic Freedoms and the Constitution

I would like to defend the traditional conservative view that judges should not second-guess political debates in the name of amorphous rights that do not appear in the text or history of the Constitution. (1) Indeed, that promise was precisely what attracted me to the Federalist Society in law school when I was a bipartisan renegade who, trying to evade the glances of my professors, would sneak into Federalist Society meetings. I received with relish the Federalist claims that liberal justices were short-circuiting all of our most important political debates by making up rights that do not appear in the text of the Constitution (like the right to privacy in Griswold v. Connecticut) (2) and, as a result, that those justices were not interpreting the law but instead making it.

I was surprised, therefore, to discover in recent years a libertarian movement that has called into question those Federalist Society axioms. (3) Some libertarians now argue that Lochner is defensible and that a great number of laws and regulations might be struck down in the name of unenumerated rights that have the most tenuous roots in the text or history of the Constitution. (4) Not all conservatives, however, are sympathetic to this invitation to economic judicial activism. There have actually been three separate strains of legal conservatism over the past 30 years: libertarian conservatives, tea party conservatives, and pro-executive power conservatives. (5)

There are significant tensions among these three strands of legal conservatism. When it was founded in the 1980s, the Federalist Society was initially successful at persuading conservatives to paper over those tensions by converging around a common rhetoric of "original understanding" and "judicial restraint." (6) But that spirit of unity did not last long. As conservatives began to receive appointments to the federal appellate courts during the Reagan administration, divisions among the three strands began to emerge. (7)

Perhaps the most striking division was the one between libertarians and conservatives who tended to back executive power. This conflict was on display in a debate between then-Judge Scalia and Professor Richard Epstein. (8) It was held at the CATO Institute in 1984. (9) Judge Scalia addressed a standing-room-only crowd and defended the view that judges should restrain themselves from overturning laws in the name of rights or liberties not clearly and expressly enumerated in the Constitution. (10) The "reversal of a half-century of judicial restraint in the economic realm," he said, "posed a threat to constitutional democracy." (11) Judge Scalia argued that conservatives who had criticized the Warren Court for liberal judicial activism now faced a "moment of truth": They had to show the courage to reject conservative judicial activism in the economic arena as well. (12)

When Professor Epstein heard what Judge Scalia had to say, he delivered a spontaneous attack on Scalia's position. Freely admitting he was questioning the conservative conventional wisdom, he said judges should be much more aggressive in protecting economic liberty. (13) There are many blatantly inappropriate statutes that call out for a quick and easy kill, he said, citing price controls and other legislative regulation of the economy. (14) He excoriated the Supreme Court for refusing to strike those laws down. (15)

That debate established a clear distinction between proexecutive power conservatives like Justice Scalia, who are suspicious of economic judicial activism, and libertarians like Professor Epstein and Professor Randy Barnett, who support aggressive enforcement of unenumerated rights, such as the liberty of contract. They both, for example, favor striking down the Patient Protection and Affordable Care Act of 2010 (PPACA). (16) Their avatar on the Supreme Court is not Justice Scalia but Justice Kennedy, who is the libertarian justice most sympathetic to their views. (17)

Since 1984, a third strand of legal conservatism has developed: tea party conservatism. (18) Tea party conservatives share with the libertarians a suspicion of broad federal power. (19) They part company with the libertarian conservatives on social issues, however, and they oppose abortion rights and gay marriage. (20) On the Supreme Court, the avatar of Tea Party conservatism is Justice Thomas, who is principled in his devotion both to social conservatism and to states' rights.

Remaining true to the Federalist Society tradition of judicial restraint requires following Justice Scalia's example and rejecting the activism of both the libertarian wing and the tea party wing of the conservative legal movement. How many federal statutes would have to be struck down if this activist vision were taken seriously? In 2005, I wrote an article for the New York Times Magazine that talked about the resurgence of a libertarian movement that some associated with the phrase the "Constitution in Exile," which Judge Douglas Ginsburg had used to identify legal doctrines that established firm limitations on state and federal power. (21)

The movement, critics argued, had no shortage of targets. Cass Sunstein predicted that as the movement succeeded, many decisions of the FCC, EPA, OSHA, and possibly SEC and NLRB would be declared unconstitutional. (22) The Social Security Act would be under constitutional stress. (23) Some applications of the Endangered Species Act and the Clean Water Act also could be struck down. (24) And in an extreme nightmare scenario, the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized. (25)

These possibilities for a libertarian movement that questioned the constitutionality of the post-New Deal regulatory state were criticized as scaremongering. (26) Surely, critics argued, conservative activists would not truly press all of these points. But as it turned out, they did. Tea party conservatives now openly question the constitutionality of the FCC, the EPA, and, of course, the Federal Reserve. (27)

In his book, The Five Thousand Year Leap, the constitutional...