"Rational Basis with Bite" for All

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Randy Barnett responds to my blog post Strict Scrutiny for All! I mentioned this to a friend and he remarked that Barnett is the current "constitutional giant-slayer", to which I replied "and I'm no giant."

That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.

I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."

Second and more importantly, the main point of my post was that whatever she thinks the remedy should by (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.

But this line of attack is not limited to economic regulation -- it is general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.