American free traders should recognize that it is not enough to win the intellectual argument. They must also mobilize free trade sentiment.
In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection is that the courts would become “a perpetual censor” of all legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.
Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards). Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.
Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.
The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective. Here the language of Justice Field’s dissent again is the most relevant evidence of the appropriate standard of review as an originalist matter. Field expressly contrasted the grant of a monopoly with regulations that had some basis in health and safety:
That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and, when these are not in conflict with any constitutional prohibitions or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.
The pretense language echoed Chief Justice Marshall’s statement in McCulloch v. Maryland that the necessary and proper clause does not empower Congress to pursue objectives outside the enumerated powers even if they are done under the guise of doing so. But the other side of the coin of McCulloch’s pretext language is the Congress has wide scope to determine the best means to achieve those objectives, even if those means are costly. The 14th Amendment does not enact cost-benefit analysis.
Nevertheless, courts following Field’s interpretation can invalidate laws that are a “pretense.” For instance, under a pretext test, the Craigmiles Court may well have been right to reject the justification that suppliers of coffins needed sensitivity training for the bereaved when such training was not required for many other supplies for services to the bereaved. This differential treatment without justification suggests pretext.
To be sure, applying the pretextual text will require judgment. Enforcing a rule preventing pretext means that courts should assure that there is a not insubstantial fit between those regulated and the rationale that gives rise to the regulation. But to the objection that this approach will result in the judiciary striking down some legislation that should be upheld, the Constitution does not try to hold the errors costs of invalidation at zero. That is obvious from the tests applied in the area of what now are termed civil rights. We should not accept a jurisprudence that makes unjustified distinctions between these rights and economic rights. Whatever liberties are protected by the Constitution should be protected by the judiciary.