I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.
Although courts had long expressed reluctance to declare laws unconstitutional, the founding generation had no constitutional theory of judicial restraint. Constitutional avoidance was a pragmatic canon, a sign of respect to the other branches, not a rule of law or a “standard of review” (a concept unknown to the Founders). Anti-court populism came and went in the nineteenth century, but it was not until the Progressive age that judges like Holmes, Frankfurter, and their allies formulated a legal doctrine to the effect that courts were, on principle, unqualified or unauthorized to interfere with the democratic process and obliged to relax constitutional standards accordingly.
(“Democratic,” of course, meant something unique to the Progressives. This was a type of democracy that would consist largely of expert administrators, not accountable to voters; supposed expert bureaucrats immune from actual democratic control, who would administer, rather than govern. The administrative agency is the manifestation of this very special kind of “democracy.”)
The Court devised a general theory of judicial restraint in a series of cases in the 1930s. This story has been told often enough—how, in 1934, in Nebbia v. New York, it abandoned the sixty-year old “affected with a public interest” test for determining the constitutionality of economic regulations and established in its place the “rational basis test”; how it backed away from that deference somewhat in Footnote Four, declaring that from now on a certain category of preferred rights—primarily those that related in some way to the “democratic process”—would receive serious judicial protection.
Less remembered today is the Court’s insistence at the time that the rational basis test was only a rebuttable evidentiary presumption, and not a bar to judicial review. Only nine months after Nebbia, the Court decided Borden’s Farm Products v. Baldwin, reversing a decision by Judge Learned Hand, who had dismissed a complaint prior to fact-finding on the grounds that the legislature might hypothetically have believed the challenged law would help resolve an economic problem: “The situation here was such that the Legislature might fear that the larger dealers would gather into their hands substantially all sales of milk to stores,” Hand had written. “[I]t may have been thought that there were enough [milk producers] in the field already.”
The Supreme Court unanimously disagreed. The presumption of constitutionality, it held, “is a rebuttable presumption” “of fact,” and “not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack.”
Emphasizing that it is “imperative” for courts in rational basis cases to engage in fact-finding and “not proceed upon false assumptions,” the Court explained that a plaintiff who challenges an economic regulation “must carry the burden” of proving its irrationality either by facts “which may be judicially noticed, or [by] other legitimate proof…. [T]he statute may show on its face that the classification is arbitrary or that may appear by facts admitted or proved.” Where a statute is challenged under the rational basis test, its validity is “properly the subject of evidence and of findings.” On remand, Judge Hand engaged in fact-finding, and the Supreme Court then reviewed the case a second time, this time upholding the law on the basis of facts Hand found. But it reiterated that “the constitutionality of the challenged provision should be determined in the light of evidence.”
A year later, the Court said it again. In Nashville, C. & S. L. Railway v. Walters, a railroad company challenged the constitutionality of a Tennessee law that imposed various costs related to railway crossings, and the trial court engaged in extensive fact-finding before striking down the statute as irrational. The state supreme court reversed, holding that fact-finding was improper under the rational basis test. Regulation of railroads “involves matter[s] of legislative policy,” and since that policy could have been thought consistent with a legitimate government interest, it was inappropriate for the trial judge to resort to evidence when determining the constitutionality of that regulation.
In a decision by Justice Brandeis, the Supreme Court reversed, declaring that the state court was wrong to “decline to consider the special facts.” “A rule to the contrary is settled by the decisions of this Court. A statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it is applied.” A court should invalidate an economic regulation if its arbitrariness is proven by “the evidence,” and the state court “obviously erred in refusing to consider [those facts].”
In 1938, the Court repeated the point again. In Polk Co. v. Glover, it again reversed dismissal of a rational basis challenge, this time involving the constitutionality of a Florida law governing the labeling of citrus fruit. The district court threw out the case because the law’s purpose was “to prohibit fraud and deception, and [the statute] is, therefore, clearly within the police power.” Yet the Supreme Court again ruled that the district court “erred in dismissing,” because “the facts alleged in the [complaint] were sufficient to entitle the plaintiffs to an opportunity to prove their case, if they could, and that the court should not have undertaken to dispose of the constitutional issues…in advance of that opportunity.
As I explain in more detail in this paper, Borden’s, Walters, and Polk characterized the rational basis test not as a formalistic set of magic words or a sleight-of-hand whereby the judge can imagine justifications for a law and then uphold its constitutionality while ignoring the actual facts. Instead, these cases characterized that test as only an evidentiary presumption which could be overcome by sufficient proof.
Sadly, in the 1950s, the Court began to transform the test into what Borden’s insisted it should not be: an absolute barrier to judicial review. Cases like Berman v. Parker—which held that a legislature’s acts are “well-nigh conclusive” of constitutionality—and Williamson v. Lee Optical sent lower courts the message that if the judge could simply imagine some justification for the law, that was enough to uphold its constitutionality.
Consider the recent decision in Colon Health Centers v. Hazel. There, the plaintiffs challenged the constitutionality of a law restricting the ability of medical clinics to obtain new equipment. They argued that these laws violated the Commerce Clause, as well as the Due Process Clause of the Fourteenth Amendent. The complaint was exceptionally detailed and specific. Yet the court dismissed the lawsuit before hearing any facts, on the grounds that evidence is irrelevant under the rational basis test, so long as the court can imagine a possible justification for the law: evidence, the judge held, would be “beside the point.” This conception of rational basis makes it into a “Get Out Of The Constitution Free” Card for the government. It merely needs to say the law is constitutional, and any lawsuit challenging its constitutionality will be thrown out, regardless of the actual facts. That’s why my friend Clark Neily refers to the test as “the rationalize-a-basis test.”
Yet the Court has been of more than one mind about rational basis. It has ruled in favor of plaintiffs in rational basis cases, indicating that that test cannot be used at the dismissal stage to throw out well-pleaded allegations of unconstitutionality. Lower courts have frequently refused to dismiss rational basis challenges, and Courts of Appeal have even reversed dismissals and ordered trial judges to give plaintiffs the chance to prove their cases.
Examine these symptoms of doctrinal schizophrenia: in FCC v. Beach Communications, Justice Thomas declared that the Court “never require[s] a legislature to articulate its reasons for enacting a statute,” so “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Instead, judges can simply manufacture their own reason for the law, and “[w]hether the posited reason…actually motivated Congress is ‘constitutionally irrelevant.’” Yet that same year, the Court said that the rational basis test requires all laws to have “some footing in the realities of the subject.” And three years later, that “[e]ven in…case[s] calling for the most deferential of standards, we insist on knowing the relation between the [law] and the object to be attained. [This] gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature…and it marks the limits of our own authority…. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Some have tried to sub-divide the rational basis test into different sub-species, but the Court has ever endorsed that, and such a proliferation of standards of scrutiny reveals the whole enterprise for the ad hockery that it is.
I think the rational basis test was a mistake to begin with. But even those who support it in the abstract must admit that today it has degenerated into a confused mish-mash of contradictory pseudo-rules leading to inconsistent, frequently indefensible, outcomes.