Can federal courts ever become zealous defenders of individual rights under the Constitution?

Clark NeilyI went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.)  The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.

Neily is a great speaker. He speaks quickly, so you have to pay attention.  Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.

Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.

The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)

If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law.  Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination.  Worse, it turns the judge into an active part of the government’s defense team.  Or as Neily explains:

Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)

Here’s how this standard played out in a real case that is near and dear to Neily’s heart.  Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill:  she could arrange flowers.  We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels.  She put together the little posies at the local supermarket and was paid a livable salary to do so.  Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.

Meadows took the license test five times and failed it five times.  Lest you think she was an ignoramus, she wasn’t.  She didn’t have a problem with the 50 written questions.  Her problem was with the practical exam.  In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition.  That’s where poor Meadows failed every time.  She wasn’t alone.  I believe Neily said that the floral panel passed only 37% of test-takers.  Neily compared this to Louisiana’s State Bar pass rate, which is 61%.  In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.

Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost.  He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.

As Neily explained it, the judge rejected the government’s argument that a poorly-tied bouquet might fall apart in a bride’s hands, spilling flowers at her feet, and causing her to trip and injure herself at her own wedding.  Apparently that was too silly even for the judge to contemplate.  Instead, the judge had his own theory, and that won the day:  the florist license was necessary to protect against “contaminated soil.”  The judge was unmoved by the fact that nothing in the requirements for becoming a florist, or in the written exam, made mention of contaminated soil.  The mere possibility that contaminated soil existed in the judge’s mind meant that it could have existed in the legislature’s mind when it passed the law, and there you had it — a rational basis for destroying a person’s livelihood.

Meadows, incidentally, died in abysmal poverty thanks to the fact that the state of Louisiana, with the complicity of the federal judiciary, stole her livelihood.

Louisiana, of course, isn’t the only place where states play favorites when it comes to the right to work.  As I drove back from the lunch, I called my sister, an Oregon resident.  She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze.  In exchange for the story about poor Meadows, my sister told me that, in Oregon, you need a license to “serve” alcohol.  By this she did not mean that you need a license to work as a bartender or that a business establishment needs a license if it wants to sell alcohol to the public.  What my sister meant is that, if you’re the waiter who brings the wine from the kitchen to the diners’ table or the martini from the bar to that same table, you need a license to do so.  God alone knows what the “rational basis” for that is, but I can readily tell you the practical basis:  alcohol is often the most expensive part of a meal, so the server who brings it to the table gets the biggest tips.

There is nothing whatsoever in the Constitution that gives a limited government the right to put irrational hurdles in the way of people’s right to a job. The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do.  Black women braiding hair in Washington, D.C.?  They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too.  Incidentally, don’t kid yourself that the politicians who pass this legislation do so because they have a principled belief that, if they don’t, the Apocalypse will be minutes away.  They do it because they’re paid to do it in the form of campaign donations.  There’s nothing wrong with this . . . provided that the judges do their job.

So where do the judges stand in all this?  In theory, the judges should be a bulwark against this type of unconstitutional activity — except that they’re not.  Instead, they bend over backwards to keep the laws on the books.  Part of the problem is that they feel constrained by the Supreme Court’s “rational basis test.”  Neily pointed out, though, that at least two appellate court panels have basically said that “rational” must have one foot grounded in reality.  If the government’s lawyers can come up only with manifestly ridiculous theories involving Martians and tripping brides, these courts indicated that they were not required to lend a hand.

The bigger problem with the judges, which is one that George Will addresses in a column published just today about Neily’s book, is that too many judges are willing to give too much deference to state legislators.  The judiciary, after all, is the only branch of government given the task of protecting the Constitution.  Legislators aren’t too concerned with the constitution.  They’re concerned with passing laws, especially those that they’re paid to pass.  The judges, whether because they’re passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.

Incidentally, you should ignore the column title at the Washington Post, which suggests that courts should engage in judicial activism, a concept that is anathema to conservatives and libertarians.  Judges are not activists when they follow the Constitution.  They are activists only when the ignore or re-write it.  The column title was a WaPo addition, that has nothing to do with Will’s or Neily’s argument that judges need to step up and protect the Constitution — and, by doing so, to protect individual liberty against government overreach.

I’ve long thought that government-created monopolies are bad things.  I’ve had a lot of time to think about this, too, since I’ve been a member of California’s State Bar for more than 30 years, a “privilege” that costs me several hundred dollars a year, much of which is used to promote political causes that I deeply dislike.

My main grumble with the Bar, though, has always been the requirement that we have to take 25 hours of “minimum continuing legal education” classes every three years in order to keep our jobs.  One could argue that this isn’t such an onerous requirement.  Thanks to the internet, I was able to get all 25 hours done for $49.  In the beginning, though, back in the mid-1980s, it was a very expensive proposition.  Big firms could circumvent the cost by having a senior lawyer “teach” a room full of assembled junior lawyers. 

Sole practitioners, however, weren’t so lucky. They had to go out hunting for classes, and those classes were costly, ranging from $50 to $200 per hour.  Oh, and back in the day, you needed 12 hours a year.  As far as I could see, the only benefit flowed to the MCLE providers, who had a captive audience mandated to buy their goods.  (Hmmm, sounds like Obamacare, doesn’t it?)  Once I figured out that MCLE was a scam, I began to realize that the State Bar was a scam too — and an unconscionable monopoly as well.

If it were up to me, membership in the State Bar would be voluntary.  It would be something that the “better” class of attorney could boast about, just a they could boast about the myriad expensive classes they took in their specialty.  Bar membership would be a marketing advantage, rather than a monopoly.  In the old days, pre-internet, one could argue that the State Bar was the only reliable purveyor of necessary information about whether a person was qualified to be a lawyer, but that’s bunk nowadays.  I imagine that, were the bar to disband today, tomorrow there would be dozens of websites offering consumers information about lawyers and law firms.

At the end of the talk, I asked Neily how he expected any turnaround to happen in the courts.  After all, the Supreme Court itself is the author of the instruction that judges use the “rational basis” standard, complete with creative writing, in their approach to state-mandated monopolies.  Moreover, especially since Harry Reid destroyed the filibuster specifically to pack the federal courts, we can expect that there will be more judges on the bench, rather than fewer, who will always give obeisance to Big Government.

In answer, Neily said two things:  First, he thinks that the American people can only be pushed so far towards big government, before they push back in sufficient numbers to force a change in politics that will eventually be reflected in the courts.  He doesn’t see this happening instantly, but rather posits a 30 or 40 year trend toward more respect for the Constitution and individual liberty.  Let me just say, “From his lips, to God’s ear.”  Second, he told me that he discusses in his book some practical ideas for speeding the trend towards liberty, and you can be assured that I’ll check those ideas out.

All in all, although Neily kept his speech brief, it was sufficiently packed with interesting ideas and information to sustain a long telephone call with my sister, and an even longer blog post for all of you.  I look forward to reading Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, and getting even more information about the way America’s federal courts have abdicated their role as the Constitution’s guardians.

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  • Ymarsakar

    Cattle needs to be licensed, just like florists and gun owners. If we don’t let people have ideas for free… why should we let them produce milk, arrange flowers, or use guns? That is not what Authority promised the overseers.
    “She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze.”
    The haves complain that their living standard is produced by those who were oppressed? What kind of complaint is this. Either you are grateful to be one of the prized cows on the tax farm or…
    “The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do. ”
    It’s called a guild. But unlike medieval family businesses, it’s not an inheritance. And thus people can be disinherited.
    “They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too. ”
    Which is why they need sugar daddies and patrons like Bill Clinton. TO pay the bribes off and get the connections. Where an individual human was free to live or die on their own resources, a human turned livestock cattle is only allowed to live by the grace of the political rulers.
    “The judges, whether because passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.”
    Judges are lawyers. And lawyers often are politicians. Lawyers were not educated to protect the Constitution, and that includes Lawyer Obama and Lawyer Clinton AND Lawyer Michelle. Laywers are not trained or commanded to protect the Constitution. That doesn’t change when they become judges. That doesn’t change when they become politicians.
    “Sole practitioners, though, had to go out hunting for classes, and they were costly, ranging from $50 to $200 per hour.  Oh, and back in the day, you needed 12 hours a year.”
    A body of people made dependent on the Authority for income, is not free. Those who are not free, are supposed to protect other people? You can’t protect other people’s freedoms unless you yourself benefit from freedom. And that is of course invalid if you are a slave living on the union or tax farm.
    <B>If it were up to me, membership in the State Bar would be voluntary. </b>
    This is why the Left hates slaves revolts. People start thinking they deserve to be free and it causes all kinds of problems and stoppages in the money farm for the elites. They hate it.
    If one’s idea of tactical or strategic solution to the war is to bring in lawyers to protect freedom that the lawyers themselves don’t have, this kind of thinking isn’t going to produce changes in the battlefield.

  • Matt_SE

    “…since Harry Reid destroyed the filibuster specifically to pack the federal courts…”
    Congress determines the size of the courts. The D.C. circuit has been “unfilled” for years because its caseload didn’t justify expanding the number of judges. A Republican Congress can easily reverse court packing by reinstating the original number of judges, terminations to be carried out in reverse-seniority order (i.e. Obama appointments get cut first).
    “Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination.”
    On a related note, it’s bothered me for years that the courts don’t seem to pursue the Truth. The usual rationalization is that truth is elusive and the best we can hope for is the security of the process (which serves the double purpose of limiting the government).
    Two lawyers arguing it out, and it is assumed the one with the best arguments will win.
    We’ve seen that fail too many times in recent memory to count. So instead, I have a modest proposal:
    All evidence is admissible, but if obtained illegally the presenter will stand trial for whatever crime was committed in its collection. The evidence MUST be accompanied by a “method of collection” statement, and the statement must be backed up with evidence (which wouldn’t be a problem if one set out with foreknowledge).
    It seems to me this would further the pursuit of Truth. What do you think?

  • Matt_SE

    On another related note, the notion of stare decisis makes it difficult to clean up the ever-increasing roll of laws.
    Analogous to that is the idea of regulatory inertia:
    If the next president eliminated the EPA for example, what would happen to all the regulations already passed by the EPA? Without an enforcement agency they couldn’t be enforced, but wouldn’t they still be on the books? Couldn’t someone sue for enforcement through the courts?
    I don’t suppose they would automatically be nullified.
    But there are so many that removing them individually would take forever.

  • lee

    In California, Title 24 governs the energy aspects of the design and construction of buildings. One part of that is lighting design. Well, some 20+ years ago, when it was rearing its head, there were hearings in Sacramento to discuss the licensing of lighting professionals. I used to work in Architectural Lighting Design. People in the field come from a variety of backgrounds: Architectural, Electrical Engineering, Theater, Interior Design. Each field brings different strengths to the discipline.* Anyhow, I attended these hearings. Quelle fun!
    The people yapping all felt that the licensing should be restricted to whatever field THEY came from—the electrical engineers on the panel felt that only electrical engineers should be licensed “lighting professionals,” architects felt only architects, etc., and NO one thought ANYONE from “theater” should get licensed—unless of course, they went back to school, studied architecture, or electrical engineering, or interior design and then got licensed in whatever field they went back to school in. Of course, no one on the panel came from a theater background.
    Eventually, the outcome seems to have been that “lighting professionals” were not going to be licensed; the Title 24 documents were going to have to be signed off by someone licensed to practice in California as an electrical engineer, an electrician, an electrical contractor. I think that’s it. Which turned out fine—we turned in our plans, and documents, and we ran the calculations, and depending on the size of the project, one of the approved signers would sign off on it.
    Not long after, an organization began called the National Council on the Qualifications for Lighting Professionals. They came up with an exam, and if you pass it, you get to put the letters “LC” after your name. It all, more or less, came out of those licensing hearings, though not from any governmental body. (The loudest person at the hearing was a big mover and shaker behind this.)
    (If you put in 36 “hours” of continuing education in a 3 year period, you get to keep the letters there. And while that was easy when I lived in Marin—The Pacific Energy Center had a gazllion free classes, I am now looking at spending a few grand just to get my “continuing education.” They’ve tightened up the rules so now only 12 hours of the 36 can be on-line courses, and those courses have to be approved by the NCQLP. Now the AIA has a nifty little quiz in some magazine that can get you 1 point. But not the freaking NCQLP…)
    Here’s the thing about the NCQLP exam—it is primarily focused on lighting retrofit. So it’s all about someone coming into some building built BEFORE energy codes, and figuring out how to retrofit the existing lighting so a total gut and reno doesn’t have to be done. Oh, and you have to know how to crunch the ROI for this. Oh, and here is a surprise: What’s the specialty of the loud mover and shaker mentioned above? LIGHTING RETROFIT!
    I have since adding a couple of more letters after my name—I lost the “LEED-AP” thing because, thank you so much Obama, the USGBC figured out that pretty much anyone could pass the test. So they made the requirement include FREAKING CONTINUING EDUCATION. The other ones have two levels of “certification”: the lower level, you just pass a test, and you get to keep the letters after your name. But if you go on for the NEXT level: YOU HAVE TO DO FREAKING CONTINUING EDUCATION!!!
    * And you can almost tell who designed the lighting: EE’s are by the numbers—it tends to be utilitarian, and provides the exact amount of lighting on the work surface as required. Usually a LOT of 2×4 troffers, or downlight “cans”—especially along hallways. Interior Designers like artsy fixtures, not terribly utilitarian, but definitely matches the style of the interior. Architects like BOLD fixtures, and they also like very neat, orderly reflected ceiling fans. Theater lighting designers who’ve crossed over the architectural lighting design like color, or interesting patterns of light. They also like “dramatic lighting.” But as people work in the field, they pick up approaches from other people, so it’s not hard and fast.

  • jj

    You frame the question in an interesting way: “Can federal courts ever become zealous defenders of individual rights under the Constitution?”  Think about that for a second.  I have no difficulty with you framing the question in that manner, but… isn’t that supposed to be their default position?  What you’re really asking is: in this day and age is it possible for the federal judiciary to do some part of their f***ing job?  If you need to ask the question at all, the answer’s “no.”