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‘The Constitutional Guarantee of Liberty Deserves More Respect’

But how much more?

12:00 AM, Apr 20, 2012 • By ADAM J. WHITE
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Last week, a federal judge in Washington issued a truly extraordinary opinion. Judge Janice Rogers Brown, of the U.S. Court of Appeals for the D.C. Circuit, went out of her way to challenge one of bedrock achievements of the 20th Century liberal legal establishment: the de-emphasis of economic rights, relative to other "fundamental rights," as a matter of constitutional law. Judge Brown's opinion already has sparked controversy, and it deserves closer scrutiny.


In Hettinga v. United States, dairy farm operators challenged the Milk Regulatory Equity Act of 2005, arguing that the law's redistributive provisions—which operate to even prices out among milk sellers—unfairly singled the farmers out in violation of various constitutional rights.

The court swiftly rejected their arguments, in accordance with long-settled Supreme Court precedent. And that's when things got interesting.

Judge Brown joined the court's unanimous opinion but she added a separate "concurring" opinion. The Hettingas had been forced to make convoluted arguments, she wrote, because the Supreme Court's long-established precedents prevented them from asserting a "simpler" one: namely, that that the Milk Regulatory Act had "impermissibly collectivized" the "operation and production of their enterprises."

Tracing the arc of 20th-century jurisprudence, Judge Brown (with Chief Judge David Sentelle, who joined her opinion) criticized the Supreme Court's New Deal Era decisions, which opened the door to aggressive federal and state regulation of economic activity. Most famously, in Carolene Products (1938), the Court declared that it would treat economic regulations as presumptively constitutional, and devote tougher scrutiny only to laws violating "a specific prohibition of the Constitution, such as those of the first ten amendments." And in other seminal cases, cited by Judge Brown, the Court endorsed state power to "adopt whatever economic policy may reasonably be deemed to promote public welfare," so long as "there is any reasonably conceivable state of facts that could provide a rational basis." Under this broadly deferential theory of state and federal power, the Court would presume that "improvident" economic policies would "eventually be rectified by the democratic process."

Such deference to economic regulation flies in the face of the Founding Fathers' design, Judge Brown argues, because the Constitution was intended to protect economic rights against majoritarian domination; if economic liberty truly is a matter of constitutional rights, then it must receive stronger protection in the courts. She reinforces this point by citing modern scholarship on the question of political ignorance, which indicates (in Judge Brown's words) that "the hope of correction at the ballot box is purely illusory." Given that there is no real hope for pro-market democratic reform, Judge Brown finds us left with nothing better than milk laws that are (quoting Judge Richard Posner) "intended to redistribute wealth from consumers of milk to producers of milk." This is just the latest proof that "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers."

And so in the end, even if the Milk Regulatory Equity Act was drafted and enacted according to purely legal procedures, to Judge Brown "it just seems like a crime." The Supreme Court's deferential stance on economic regulation "means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."

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