Strict Scrutiny for Every Law? Remembering the Real Carolene Products

I have been following the reaction to Judge Janice Rogers Brown and Chief Judge David Sentelle’s concurring opinion in Hettinga v. United States.  It won’t surprise Volokh Conspiracy readers to know that I was very pleased to see their critique of “rational basis” Due Process Clause scrutiny of economic legislation.  Indeed, we have recently seen the something similar in the Commerce Clause context from Justice Anthony Kennedy in his concurring opinion in Comstock:

The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487–488 (1955). This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us.

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more so. Indeed, the cases the Court cites in the portion of its opinion referring to “rational basis” are predominantly Commerce Clause cases, and none are due process cases. See ante, at 6 (citing Gonzales v. Raich, 545 U. S. 1 (2005); Lopez, supra; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981)).

There is an important difference between the two questions, but the Court does not make this distinction clear. Raich, Lopez, and Hodel were all Commerce Clause cases. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical. “ ‘[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.’ ” Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment)). The rational basis referred to in the Commerce Clause context is a demonstrated link in fact, based on empirical demonstration. While undoubtedly deferential, this may well be different from the rational-basis test as Lee Optical described it.

Following the links to the blog posts by David Schraub, led me to his post Strict Scrutiny for All! in which he writes, “Judge Brown’s critique is basically the indictment of Carolene Products,” and that “Judge Brown[‘s] argument doesn’t support strict scrutiny for economic regulation — it supports strict scrutiny for every law Congress passes.”  But that ain’t necessarily so.

In the body of Justice Stone’s opinion in Carolene Products, the New Deal Supreme Court reaffirms that some meaningful scrutiny of economic liberty is appropriate under the Due Process Clauses.  “Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice,” he wrote, “such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”  Earlier in his opinion, Justice Stone was emphatic about the availability of this type of scrutiny.

We may assume for present purposes that no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis.

So we can see that the New Deal Court in Carolene Products did not foreclose genuine “rational basis” scrutiny of economic legislation.    Instead, it said that the “presumption of constitutionality” could be rebutted by evidence to the contrary, though there may be “narrower scope for the presumption of constitutionality” when legislation runs afoul of the situations described in Footnote Four.

So where does modern “anything goes” rational basis scrutiny come from?  As Justice Kennedy correctly noted in Comstock, it comes not from the New Deal Court, but from the 1955 Warren Court case of Williamson v. Lee Optical in which Justice Douglas replaces the realistic actual rational basis scrutiny that was employed by the lower court with a formalist hypothetical rational basis that is satisfied so long as a judge can imagine any possible rational basis for a statute.

In an essay forthcoming soon in the George Mason Law Review (and even sooner on SSRN), I shall have more to say about Lee Optical.  But the most important point is this:  strict scrutiny is not our only option when it comes to judicially protecting economic liberty.  Economic liberties can also be protected from rent-seeking legislation benefiting some economic actors at the expense of others by a realistic inquiry into the actual rational basis of legislation.   In my essay, I explain how the lower court in Lee Optical actually did this quite effectively after dutifully invoking the presumption of constitutionality.   And the judicial authority for this inquiry is the much-revered opinion in Carolene Products.

When discussing economic liberty, Professor Schraub also repeats Justice Holme’s canard about the Fourteenth Amendment not enacting Mr. Herbert Spencer’s Social Statics.   As I have explained elsewhere, slavery was an economic system and the Thirteenth and Fourteenth Amendment were designed to protect the economic liberties of the freedman and others, as evidenced by the economic liberties Congress protected in the Civil Rights Act of 1866.  Unless those Amendments are confined by some variant of “original intent” to be limited only to the freedman, they protect — and were designed to protect — the economic and nonenonomic liberties of all Americans.  Indeed the modern distinction between economic and noneconomic liberty is anachronistic when read back into the Thirteenth and Fourteenth Amendment.  But it is enough merely to correct the record about Carolene Products and the origin and nature of modern “rational basis” scrutiny.

UPDATE:  In case anyone thinks it is a stretch to characterize slavery as an economic system, here are the specific rights that Republicans in the Thirty-Ninth Congress sought to protect in the Civil Rights Act of 1866, which was enacted under the authority of  Section 2 of the 13th Amendment, which prohibited “slavery” and “involuntary servitude”:

the right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property . . .

Defending the constitutionality of the Civil Rights Act in Congress, Michigan Senator Jacob Howard noted this about a slave:

He owned no property, because the law prohibited him. He could not take real or personal estate either by sale, by grant, or by descent or inheritance. He did not own the bread he earned and ate . . . .  Now, sir, it is not denied that this relation of servitude between the former negro slave and his master was actually severed by this amendment. But the absurd construction now enforced upon it leaves him without family, without property, without the implements of husbandry, and even without the right to acquire or use any instrumentalities of carrying on the industry of which he may be capable . . .

After the Civil Rights Act was vetoed on constitutional grounds by President Andrew Johnson, a Tennessee Democrat, the Republicans overrode his veto with a supermajority, and then proceeded to propose the 14th Amendment to ensure Congressional authority to protect these (and other) liberties.  This information and more is in the article I linked to above.