… is from Georgetown University law professor Randy Barnett’s review, in the Nov. 20th edition of the Wall Street Journal, of Institute for Justice attorney Clark Neily’s new book, Terms of Engagement:
Countless such restrictions on individual liberty are supposedly needed to protect the health and safety of the public. But as Mr. Neily explains, under the current doctrine favoring restraint, government lawyers needn’t provide any actual proof of a genuine health or safety problem, or show that the law’s restrictions address whatever problems may truly exist. Indeed, existing doctrine requires judges to make up reasons for such restrictions, no matter how disconnected these rationales may be from why the regulations were adopted.
Thus does constitutional law enshrine what economists call “rent seeking” by the politically powerful. The price is the economic liberty that once fueled the American dream.
Most outrageously, under the doctrines of deference and restraint, courts are supposed to defer to legislators’ own assessments of the constitutionality of their acts. Legislators then turn around and rely on the courts’ willingness to uphold their powers as proof of their constitutionality. So congressional supporters of ObamaCare claimed it was constitutional because the courts would uphold it; once enacted, supporters of the law urged the justices to defer to Congress’s judgment that the law was within its constitutional powers. Call this “double deference.” With judges deferring to legislatures and vice versa, no one actually enforces the Constitution’s constraints on legislative power.