The Georgetown Journal of Law and Public Policy has a great symposium "Is the Rational Basis Test Unconstitutional?' (nominally the Summer 2016 issue but I only recently received a copy). It includes contributions from Evan Bernick (Institute for Justice), Randy Barnett (Georgetown), Dana Berliner (Institute for Justice), Erwin Chemerinsky (UCI), Richard Epstein (NYU), Robert Farrell (Quinnipiac), Tara Leigh Grove (William and Mary), Jeffrey Jackson (Washburn), John McGinnis (Northwestern), Clark Neily (Institute for Justice) and Suzanna Sherry (Vanderbilt).
A number of the contributions have a strong originalist orientations. In particular, John McGinnis's essay "Reforming Constitutional Review of State Economic Legislation" gives an originalist account of the review of economic legislation, as described in his introduction (footnotes omitted):
For the first time in decades, lower appellate courts have struck down economic legislation as lacking a rational basis. These cases likely reflect a growing concern that many occupational licensing regimes have become a barrier to social and economic inclusion. This view is not limited to the right side of the political spectrum. The combination of judicial decisions and policy concerns prompts anew the question of whether the Supreme Court's very lenient review of economic legislation is sound as a constitutional matter.
This short essay unpacks that issue because it is not a single question but many. Such unpacking also allows us to get closer to an originalist view of the proper standard of review, because “rational basis”–the term now used to describe review of economic legislation–does not appear in the Constitution. The phrase thus cannot be the starting point of an originalist analysis.
This essay suggests that the original meaning of the Fourteenth Amendment likely requires more searching judicial review of economic legislation, particularly occupational licensing, than the post-New Deal consensus provides. The Amendment not only prohibits legislation with solely a protectionist rationale but also requires legislation that substantially harms economic prospects to have a bona fide police power rationale, such as one advancing health or safety.
The appropriate scope of judicial review in this area involves both procedural and substantive aspects. The procedural aspect of judicial review focuses on such issues as who has the burden of proving that legislation has a police power rationale and the somewhat related question of whether courts can hypothesize reasons for the legislation that the legislature did not put forward. The substantive question focuses on what provision in the Constitution authorizes invalidation of economic legislation and what standard of review it provides.
The procedural issues have clear answers that derive from the nature of judicial review and the structure of litigation. Briefly, those challenging a regulation must shoulder the burden of showing that the regulation fails to meet the constitutional standard because judicial review itself requires the judges to come to a clear view that legislation is unconstitutional before invalidating it. But this presumption is a relatively weak one. Its nature is jurisprudential and not based on the claim that the legislature is better at finding social facts than the courts. Thus, if the courts can use their traditional methods for finding facts and come to a firm conclusion that the legislation is not supported by the rationale and/or factual predicate that the Constitution requires, they should invalidate the legislation.
This presumption is also consistent with putting the burden of production on the government in the course of litigation because the government likely has better access to the justification and relevant evidence. Once the production burden is satisfied, the burden shifts to the plaintiff. The judiciary, however, is not confined to upholding legislation on the basis of the rationale or on the evidence that a legislature provides so long as the government in litigation satisfies the burden of production. The legislature has no obligation to provide either rationale or evidence, just as it has no obligation to provide reasons for its constitutional interpretations.
A full assessment of the appropriate stringency for review of economic legislation requires a more substantial inquiry than the space allotted here. But it seems very likely that the original meaning of the Fourteenth Amendment protects economic rights, such as the right to pursue an occupation. The more difficult question is to define the substantive standard of review for economic legislation that does offer a police power justification. And here the standard is probably relatively weak. Courts can and should invalidate legislation where the police power justification is nonexistent or pretextual or when it is counterproductive, as when a safety regulation makes for less safety.
But the greater practical problem is legislation that does have some justification but where the benefits are much smaller than the costs, costs such as interference with people's capacity to choose their professions and the consumer surplus created by easier entry. The Fourteenth Amendment does not enact cost-benefit analysis. Thus, while the rational basis test should be revised if we are to be true to the Constitution, the direct effects of such reform may be modest.
To be sure, recalibrating what has been called rational basis review can also have expressive effects beyond the direct benefits of invalidating unconstitutional legislation. The new standard may well move legislatures to consider more seriously the actual economic effects of their economic regulation. But there are other more promising avenues to create more coherent economic regulation of occupational licensing and other economic legislation at the state or local level. These include the more vigorous use of federal antitrust law and state and local implementation of cost-benefit analysis on the model of the federal government.
I have noted draft versions of a couple of these papers as posted on SSRN. Unfortunately the whole symposium is not available online — indeed, the Journal's website does not even currently show the table of contents of the symposium (!), much less provide pdf versions of the articles. The Journal is a great source for originalist publications (I've published there in the past) — but it needs to join the twenty-first century. Most law reviews are making their materials available on line simultaneously or near-simultaneously with print publication. Especially in the case of symposia, it's impact on the scholarly conversation is greatly limited when they don't. (I do appreciate them sending me a print copy though).
Posted at 6:07 AM