Moreover, at the founding it might have been reasonable to
assume that legislators might deliberate about the constitutional
scope of their powers—as the first Congress did when debating a
national bank—a deliberation of which judges might well be
respectful. Today, however, if legislators pay any attention to the
Constitution at all—and they typically pay none—they merely
debate whether or not the courts will uphold their acts. When
courts, in turn, are deferring to legislatures about the scope of
their own powers, while legislatures are deferring to the court’s
willingness to uphold their laws, we have what I call the problem
of “double deference,” where no one is assuring that legislatures
are remaining within their just powers (pp. 128-129).
When devising implementing doctrine, courts should be
mindful of this reality. I propose that, to protect the rights
retained by the people, judges should require legislatures to
articulate the proper end they seek to accomplish—a seemingly
reasonable demand—and then examine the fit between the means
adopted and the stated end. And simply helping out a favored
interest group at the expense of either a minority of the people or
the people as a whole is not a proper end of a legislature in a
republic in which the people themselves retain their natural rights.
By the same token, where different persons are being treated
differentially, courts should ask how this differential treatment of
individuals or groups is justified. What judges should not do, I
maintain, is adopt highly unrealistic and formalist “presumptions”
in favor of legislative power that cannot be rebutted by any
argument or evidence presented by a member of the sovereign
people to an independent and neutral magistrate.
In this way, irrationality and arbitrariness review provides an
outer boundary or guard rails within which legislatures are
entirely free to regulate the exercise of natural rights or liberty in
good faith for the common good.
Such an outer boundary of good faith would seem to fall within the
qualifiers that Campbell attaches to the discretion he says legislatures
were thought to have at the founding: It is not “rigid,” it does not
“necessarily” lead to “less government,” and it “principally” relies on
reinforcing the structure of our Republican Constitution.
=========
Barnett responds to now Justice ACB:
AMY CONEY BARRETT
Like Jack Balkin, Amy Coney Barrett is entirely right that I
am not making an originalist case for the Republican versus the
Democratic constitutions.50 Perhaps an originalist case can be
made that the public meaning of “We the People” was
49. See Randy E. Barnett, Afterword: The Libertarian Middle Way, 16 CHAP. L. REV.
349, 358 (2013) (“ecause proponents of social justice and legal moralism typically
propose superimposing their schemes onto existing structures of private property and
freedom of contract, rather than supplanting them altogether, these stances are necessarily
more ambitious than simply limiting legal coercion to the libertarian core that must still be
ascertained and enforced.”).
50. See Amy Coney Barrett, Countering the Majoritarian Difficulty, 32 CONST.
COMM. 61, 66 (2016) (“The book is less about what the Constitution’s original public
meaning requires than about what is normatively attractive.”).
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individualist, but Jud Campbell’s article shows how challenging it
would be to establish this. There is one sense, however, in which
originalism does figure into my analysis: The “republican”
conception of the Constitution I identify explains and justifies
certain features of our written Constitution that Levinson and
others have condemned as “undemocratic.”
Put another way, if the original meaning of the text of the
Constitution is undemocratic, the narrative I present helps bolster
the case for adhering to these features rather than treating them
like inkblots. It may well be that the very features of our
Constitution that lead American law professors like Levinson to
prefer Euro-style parliamentary systems—and recommend them
to other countries—is what makes the original meaning of our
Constitution “republican” and therefore good, rather than
“undemocratic” and therefore bad.
Barrett begins by focusing on my claim that courts need to
“realistically assess whether restrictions on liberty were truly
calculated to protect the health and safety of the general public,
rather than being the product of ‘other motives’ beyond the just
powers of a republican legislature.”51 This is necessary, I wrote,
because “[r]equiring the government to identify its true purpose
and then show that the means chosen are actually well suited to
advance that purpose helps to smoke out illicit motives that the
government is never presumed by a sovereign people to have
authorized.”52
To this she responds with a series of questions:
Barnett’s emphasis on the importance of recovering the
legislature’s true purpose understates the complexity of
identifying legislative intent. It is extraordinarily difficult [. . . ]
for a court to glean what was “really” going on behind the
scenes of a statute. A legislature is a multimember body, and
different members may have different motives. Perhaps some
legislators enacting a ban on filled milk were concerned about
its health effects and others were beholden to a powerful dairy
lobby. Whose intent controls? Is such a statute truly calculated
to promote health and safety or is it the kind of rent-seeking
statute that rational individual sovereigns would not
countenance? Do the rent-seeking motives of some legislators
51. BARNETT, p. 125 (her emphasis) (praising the late-18th and early 19th-century
courts that took this approach).
52. P. 232 (my emphases).
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corrupt the statute if other legislators act with the public
welfare in view?53
Given how I expressed myself in the book, this is a point well
taken. Despite my assertion that courts should identify the “true
purpose” of a measure, I do not propose an inquiry into the
subjective motives of a multimember body like the legislature.
What I meant—and wish I had stated more precisely—is that
courts should be cognizant that legislators and regulators
sometimes, and even often, impose restrictions on the liberties of
some of the people for reasons other than the protection of the
health and safety of the public, or some other power they justly
exercise.
Instead, elected legislatures and unelected regulators alike
sometimes invoke the health and safety of the public as a pretext
for channeling special benefits and privileges to a politically well
connected few. As Barrett notes, in the book, I give several
examples. Indeed, most of the most famous constitutional cases
about economic regulation involve measures enacted for such
illicit reasons.
What I propose is that when restrictions on the liberties of
We the People are challenged, courts should be realistic rather
than formalist about the possibility that such laws were enacted
for what Justice Rufus Peckham described as “other motives.”54
But this is a conclusion he reached not by inquiring directly into
the motives of New York state legislators, but after realistically
assessing and debunking the purported health and safely rationale
for a maximum hours laws just for bakeshop employees—but
neither the bake shop employers who worked in the same
conditions nor employees in other occupations with comparable
working conditions.
So, rather than inquire into the subjective motives of
legislators, courts should require that legislatures commit
themselves to a proper end they claim to be achieving, and then
assess whether the means chosen to meet that end were
“irrational” or “arbitrary.” Although courts do not do so now, it
is not too much to ask legislatures to include the purpose for their
measures in the enactment itself, rather than rely on lawyers to
53. Barrett, supra note 50, at 70 (footnotes omitted).
54. Lochner v. New York, 198 U.S. 45, 64 (1905).
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make up the purposes after the fact in litigation, as courts
currently permit.
Then, courts should examine whether the means chosen
bears a sufficient relation to the stated end. This is an inquiry that
courts make routinely in cases involving judicially-favored
“fundamental rights” or “suspect classes” of persons.55 Again, in
the book, I provide examples of this inquiry in practice, including
the lower court opinion in Lee Optical v.Williamson. And I
contrast this with the Court’s uncritical deference to legislative
assertions of public purpose in Bradwell v. Illinois56 and Plessy v.
Ferguson.57
The search for sufficient means-ends fit is simply too
common a judicial inquiry to be dismissed as impractical for some
liberties and but not for others. The reason for disparate
treatment of different liberties is due to a judicial determination
that some liberties are more worthy of judicial protection than
others. Those who, like Barrett, question placing one’s “faith in
courts” need to explain why judges get to choose some rights as
“fundamental” and some classifications as “suspect” but not
others.
Denying a judicial duty to hold legislatures to within their just
powers in all cases or in no cases would eliminate the reliance on
judicial discretion to identify which rights and liberties deserve
protection. But putting one’s “faith in judges” to choose
meaningful scrutiny in some cases, and fictitious “rational basis”
scrutiny in others, is inconsistent with a professed skepticism of
the “institutional capacity” of judges. I do not see how you can
have it both ways.
Barrett characterizes “the normal functioning of the
legislative process” this way:
The legislature is not an idealized body that acts with one mind,
but a multimember body that produces legislation through a
complex and even chaotic process. Any bill that runs the gamut
of this process represents compromises made along the way,
sometimes to resolve the competing desires of different
55. See Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479 (2008).
56. 83 U.S. (16 Wall.) 130 (1872).
57. 163 U.S. 537 (1896).
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constituencies and sometimes because the legislature has
drawn a line somewhere.58
But “resolving the competing desires of different
constituencies” is not, standing alone, a proper legislative purpose
in a constitutional republic in which the liberties of each and every
person merits protection. To this description of the “complex and
even chaotic process,” Barrett might have added that bills are
very often written by industry representatives for staffers, and
then are logrolled past legislators who typically know nothing of
their contents.
Without transparency, how are we supposed to know
whether these “compromises” among the “competing desires of
different constituencies” are proper or improper? In a
constitutional republic in which We the People are the ultimate
sovereign, the persons who are on the coercive end of such
“compromises” have a right to know. And the due process of law
requires them to have the opportunity to contest the necessity and
propriety of such compromises before a neutral magistrate.
Nor are legislators realistically “accountable” for most of
what they do. No legislator has ever been defeated because they
voted for a licensing bill that irrationally or arbitrarily restricted
the liberty of Americans to braid hair, arrange flowers or
furniture, make caskets, or drive a limo. And this is not because
such restrictions have been approved by the general public. It is
because the electorate is ignorant of these acts, has insufficient
interest in them to care, and is only allowed to choose between
two competing parties, each of whom favors an amalgam of
policies, only a handful of which are particularly salient (pp. 176-
178).59
In light of this, to imagine that these liberties are somehow
“balanced” in the legislative process by legislators who are held
to account by the voters is to engage in magical thinking. The only
time where legislators do consider the constitutionality of their
actions is when restricting a right such as the freedom of speech
that the courts will protect. Only when legislators know that
individual citizens may challenge their actions in court and judges
58. Barrett, supra note 50, at 73.
59. See also ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY
SMALLER GOVERNMENT IS SMARTER (2013).
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will be looking over their shoulders do they even discuss the
question of a measure’s constitutionality.
In every other area, legislators employ the artifice of “double
deference”: Courts will defer to the legislature’s assertion of
power and then, when asked if what they do is constitutional,
legislators say “yes, because the courts will uphold us” (pp. 128-
29). This is as big a fraud on the public as anything that economic
regulation is supposed to prevent.
Barrett asks a very good question: “Would Prigg, Dred Scott,
and Plessy have come out differently if courts had only applied
the standard Barnett proposes? Was it really a misguided
attachment to judicial restraint that drove those cases, or did the
Court see through the same discriminatory lens as the
legislature?”60 To answer this, consider three cases.
The first is the Slaughter-House Cases61 where there was an
extensive record in the Louisiana legislature that the slaughterhouse bill was a good faith public health measure.62 The only constitutional issue was whether a monopoly given to a private
company was an appropriate means of pursuing a legitimate
legislative purpose. But after the Supreme Court’s ruling refusing
to recognize the right to pursue a lawful occupation as protected
from state abridgement by the Fourteenth Amendment, the
entire legislative record was constitutionally irrelevant. Although
the majority in Slaughter-House cited this record, the law would
have been equally constitutional without a single witness being
sworn.
You need not take my word for this. The proof is that the
very next day, in Bradwell v. Illinois, 63 the Court relied on its
ruling in Slaughter-House to turn away Myra Bradwell’s claim
that denying her the right to practice law was arbitrary or
irrational. And the Court did so without any examination into the
irrationality or arbitrariness of this restriction. True, three of the
dissenters in Slaughter-House concurred in the judgment.64 So
Barrett is correct to suggest that, for these three justices, the
60. Barrett, supra note 50, at 79 (footnotes omitted).
61. 83 U.S. 36, 124 (1872).
62. See Randy E. Barnett, The Three Narratives of Slaughter-House, 41 J. SUP. CT.
HIST. 295 (2016).
63. 83 U.S. (16 Wall.) 130 (1872).
64. Id. at 139 (Bradley, J. concurring).
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outcome would have been the same under the standard that I
propose.
But, unlike Justice Miller, Justice Bradley was forced to
explain why Myra’s exclusion was not arbitrary, and the reasons
he articulated provided women’s rights advocates with a rallying
cry. In contrast, according to the majority’s approach, a court
need not even inquire into the basis of the law. So, while the case
would likely have come out the same under either approach, with
mine, Myra Bradwell had a chance of success. And, even if she
lost, the court’s reasoning could have been criticized and used as
a basis for change in the future.
Furthermore, in Bradwell, Chief Justice Chase dissented not
only from Miller’s majority opinion but “from all the opinions” in
the case,65 including Justice Bradley’s. Even in 1873, when
opinions of women were highly sexist, the Chief Justice would
have upheld Myra Bradwell’s challenge as an irrational or
arbitrary restriction on her right to pursue a lawful occupation.
So, under the standard I propose, one justice would have reached
a different result.
In Plessy, the Court asserted that: “[W]e cannot say that a
law which authorizes or even requires the separation of the two
races in public conveyances is unreasonable.”66 Most likely, like
the majority in Bradwell, they would have upheld segregation
regardless of what record was developed below. But relying on
Slaughter-House, the Court needed no such record to reach its
conclusion. Consequently, the Court did not even have to
consider whether the state’s claim to be preserving the public
order was plausible. How convenient for them. The judicial
restraint of the Democratic Constitution took them completely
out of the picture.
As with Chief Justice Chase’s dissent in Bradwell, in Plessy,
the more realistic assessment of this exercise of the police power
justified a solo dissent by Justice Harlan. So here too, the different
standard made a difference; the difference between a unanimous
decision and one accompanied by a contemporaneous dissenting
opinion to explain to the public and posterity why the majority
was wrong.
65. Id. at 142 (Chase, C.J., dissenting).
66. 163 U.S. 537, 550–51 (1896).
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The fact that such a law would get scrutiny today shows that
courts are quite capable of supplying it. So, where there is the will
to ensure that the liberty of We the People is not irrationally or
arbitrarily restricted, there is a way—provided that courts
appreciate their essential role as servants of the sovereign people,
including individual citizens like Myra Bradwell and Homer
Plessy.
Finally, like other authors, Barrett mentions my
“presumption of liberty”: Under “Barnett’s Republican
Constitution . . . [r]ather than treating legislation as presumptively
constitutional, they must treat the citizen’s challenge as
presumptively correct.”67 As she acknowledges, however, in this
book, I say very little about putting the thumb on the scale for the
citizen against the state: just two paragraphs. Indeed, after a long
discussion of the lower court opinion in Lee Optical, I note that
“who bears the formal burden of proof may be less important for
preserving the sovereignty of the people than that courts
realistically assess the rationality and arbitrariness, even if the
legislature is given the benefit of the doubt” (p. 243).
Given the professed sympathy of modern law professors for
so-called “legal realism,” ironically, in my book I am merely
advocating realism over formalism. I am skeptical that the legal
realists were really all that interested in realism. In the end, as
soon as they had the votes, they replaced realist “Brandeis briefs”
with a formal presumption of constitutionality, which eventually
was deemed to be irrebuttable, and therefore ceased to be a true
“presumption.”
In my jaundiced opinion, assertions of “realism” and
“restraint” were merely useful arguments to advance the
progressive political agenda of the Legal Realists. Likewise,
today’s progressives are interested in “judicial restraint” and
deference to the majoritarian branches only when the laws they
like are being challenged as unconstitutional.
Like others, Barrett refers to my approach as “libertarian,”68
yet all I am asking for is realism. If such realism cuts in a
“libertarian” direction, then that is more a reflection on
67. Barrett, supra note 50, at 62.
68. Barrett, supra note 50, at 76 (referring to “Barnett’s generally libertarian
approach”).
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c
legislatures and what they are “really” up to most of the time than
it is on my priors.
