In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
The New Deal Constitution—the Upside-Down Constitution under which we live—was ratified on April 25, 1938. On that day, President Roosevelt’s Supreme Court handed down back-to-back decisions in United States v. Carolene Products and in Erie Railroad v. Tompkins. The American Enterprise Institute will mark the occasion with an event, put together by Richard Epstein and yours truly. The announcement and invite for the event (noon, April 25, at AEI) is here. I’ll moderate an exchange between Richard and Jack Balkin (Yale); the following panel discussion features Randy Barnett (Georgetown), Barry Cushman (Notre Dame), Jeremy Rabkin (GMU), and Suzanna Sherry (Vanderbilt). The event will be livestreamed. Do join—to quote a line that cost a great man his seat on the Supreme Court, it’ll be an intellectual feast. Some preliminary noodling:
Carolene Products announced that federal legislation would henceforth be subject to “rational basis” review—that is, none at all. (The exception, the Court said in a famous footnote, are statutes that threaten to trample on “discrete and insular” minorities or “specific” Bill of Rights protections.) Erie Railroad famously declared that contrary to what everyone had thought for well over a century, “there is no federal general common law.” Henceforth, federal courts would decide “diversity” cases among parties from different states under the law of the state in which they sit—meaning, to all intents, the plaintiff’s home state. If our exotic tort law doctrines and the “litigation explosion” seem puzzling, puzzle no more: they are the (quite probably, intended) consequence of Erie.
To be sure, the list of foundational New Deal decision is longer (West Coast Hotel, U.S. v. Darby, Wickard… take your pick). However, Carolene Products and Erie merit a special place of honor. For instance:
We like to think in grand institutional categories—the role of “the Court,” “the Congress,” etc. Carolene Products and Erie maintain that veneer, but they deliberately target commercial actors and transactions and expose them to unconstrained interest group politicking. The Founders’ fear that this might be particularly an arena of dangerous factionalism and state parochialism is gone. What takes its place is the faith that boundless “experimentation” on the nation’s commerce is a great idea: more is better (at least so far as the federal courts are concerned). The recognition that the Constitution—the actual Constitution—commits the protection of that commerce to the Supreme Court is missing entirely from contemporary jurisprudence, and from the contemporary debate.
More profoundly, the decisions define the deep structure of the New Deal Constitution; and yet, they seem completely unassailable. We’re allowed to argue over Wickard and even Lochner but not these two war horses: why is that? Among the reasons, methinks, is the failure of conservative-libertarian-originalists to engage that debate. Old-style originalists actually embrace the decisions. Carolene Products stands for judicial restraint, and Erie is the anti-Lochner (pro-state, anti-activist, brutally positivist)—and lo, that’s our Constitution, which one of these days will triumph over the Warren Court. That thinking is no longer very prominent, but the thinking that has replaced it can’t easily get a handle on Carolene Products and Erie, either. All the conservative-libertarian legal campaigns that have gained traction (intellectually, and occasionally in real law) seize on a specific clause—the Commerce Clause, the Second Amendment, the Privileges and Immunities Clause, the Takings Clause. They must mean now what they meant back then, and damn the corruption.
Carolene Products and Erie don’t corrupt the Constitution in that way. They’re not about a clause (or clauses), and you can’t mobilize a clause against them. (E.g., you can try “the Judicial Power” of Article III. That’s a good start on Erie, but it gets you only so far.) They’re about the structure and genius of the Constitution, which they pervert. Any serious debate about the decisions would have to engage them at that level.
The AEI event will be a great start.