Buzzing By The Constitution

May 25, 2011

By Chip Mellor

During a recent argument before the U.S. Supreme Court, Justice Elena Kagan sought to minimize the importance of an attorney’s statement with which she disagreed by saying “some people may use certain buzz words and other people don’t use those buzz words.” Sadly, the problem with “buzz words” in constitutional cases stems not from the advocates before the Court, but from the Court itself. Since the New Deal, the Court has continually based its constitutional interpretation on terms and tests that redefine the actual constitutional text and effectively predetermine most outcomes.

Two of the most egregious examples of such constitutional buzz words are “heightened scrutiny” and “rational basis.” Neither term appears in the Constitution. But both have become enshrined in constitutional analysis and are routinely employed by federal and state courts to uphold laws and governmental actions. Despite such ubiquity and the fact that these buzz words profoundly affect the lives of every American, most people have never heard them uttered. Their prevalence and influence offer an important lesson in what happens when courts abdicate their responsibility by improperly deferring to the legislative branch.

The Supreme Court struck down early New Deal programs because it found that Congress did not have the power to enact them. Simply put, the Court found that there were no enumerated powers in the Constitution that authorized violating the rights of Americans whose property and livelihoods were being drastically regulated.

After intense political pressure, including a threat to add additional justices to the Court to obtain a majority, President Franklin Roosevelt induced the Court to change its position on the New Deal and the Constitution. In order to uphold New Deal programs from constitutional challenge, the Court had to relegate certain rights—notably property rights and economic liberty—to second-class status. This was accomplished by creating a hierarchy of rights with those at the top (like the First Amendment) receiving relatively strong protection and those at the bottom (property rights and economic liberty) receiving very little.

To rationalize this, the Court came up with the notion that when courts examine governmental action that affects top-tier rights, they should employ “heightened scrutiny” effectively placing the burden on the government to justify its action. Often laws subject to heightened scrutiny are struck down.

The flip side was that laws affecting rights in the bottom tier would be upheld if the court could find any “rational basis” for the law. That term came to mean that any “reasonably conceivable” set of facts will suffice to justify a law even if the facts did not exist at the time the law was passed. In practice, courts often make up reasons and find hypothetical facts sufficient. This means that almost all laws governing economic liberty or property rights are upheld with only perfunctory analysis. Indeed, the application of these buzz words has evolved to the point that today courts routinely defer to legislatures on economic and property matters and rubberstamp laws that regulate everything from lemonade stands to the color of one’s house.

The Constitution was crafted painstakingly to establish a government of limited and enumerated powers. The Supreme Court has the vital and challenging job of interpreting the Constitution consistent with the Founders’ goal of maintaining such a liberty-oriented institution. Anytime buzz words like “heightened scrutiny” or “rational basis” serve to replace the words of the Founders, the Court is effectively amending the Constitution.

Chip Mellor is IJ’s president and general counsel.

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