By Nathan Tucker
“[This case] reveals an ugly truth: 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 the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
So argued Judge Janice Rogers Brown (joined by Chief Judge David Sentelle) in her recent concurring opinion in Hettinga v. United States (D.C. Cir. 2011). But despite her stirring political defense of capitalism, she failed to identify a single provision in the Constitution that guarantees the right to capitalism.
Though entirely sympathetic with the plaintiffs, she agreed with the majority because, “given the long-standing precedents in this area, no other result is possible” in this case but the denial of their claims. “No doubt they would have preferred a simpler [legal argument]—that the operation and production of their enterprises had been impermissibly collectivized—but a long line of constitutional adjudication precluded that claim.”
While the result was foreordained by precedent, she concurred separately in order to urge the U.S. Supreme Court to overturn this “long line of constitutional adjudication.” She decried, for instance, the Court’s decision in Carolene Products (1938) to “relegate economic liberty to a lower echelon of constitutional protection than personal liberty, according restrictions on property rights only minimal review.”
She concludes that, “the practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions.”
Her solution lies not in “the hope of correction at the ballot box[, which] is purely illusory.” Instead, she wants the courts “to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are ‘within legislative power.’” Such wise jurists would doubtless overturn statutes that “interfer with the rights of property and contract…; with the natural law of supply and demand.”
The problem, however, is that the Constitution simply does not protect “the natural law of supply and demand” from the “addition to redistribution.” Some theorists have argued that the Due Process Clause’s guarantee of liberty and property protects “the natural law of supply and demand.”
As previously noted, the only right granted by the Clause was process—requiring the government to proceed according to constitutional and statutory provisions. It was never intended to strike down a law for violating “due process”, but rather to make sure the due process required by existing laws was followed.
Other theorists have postulated that the Privileges and Immunities Clause protects the right to capitalism. However, that Clause merely guarantees that whatever rights and privileges are afforded by federal law cannot be denied by the States.
In short, the problem with Judge Brown’s concurrence is that it requires judicial activism to enforce non-enumerated rights, setting up the courts as an unelected super-legislature second-guessing the democratic process. The better legal argument isn’t that Congress used its power for socialist means, but that Congress doesn’t have the power to begin with under a Constitution of limited, enumerated powers.
In cases, however, where Congress does in fact have the power to act, the only recourse lies at the ballot box. Though there is no constitutional presumption against Congressional regulation of economic activity, there should be an electoral presumption against such interference.
As Judge Brown noted in a 2000 speech before the Federalist Society chapter at the University of Chicago, “humanity’s capacity for evil and tyranny is quite a real and quite as great as its capacity for reason and altruism…in politics, the…former tendency [may be] the stronger.”
Because man, by his fallen nature, is evil, government is instituted to restrain evil by securing man’s unalienable right to life, liberty, and property. However, because government is made up of fallen men, it restrains evil as much (if not more) by not acting as it does by acting.
Every act of legislation, therefore, should be greeted by voters with distrust and skepticism. As Ronald Reagan aptly remarked, the “nine most terrifying words in the English language are ‘I’m from the government and I’m here to help.’” The mantra of every citizen should be Bob Novak’s famous admonition—always love your country, but never trust your government.
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