Article by Jerry L. Mashaw
Suppose some group of merchants decided to seek state legislation protecting itself from competition. Because such protection could not be sought openly, the group developed a strategy that involved the presentation of its substantive case in terms of the group's need for protection from even more powerful economic interests outside the state. This request for protection was, of course, not to be presented as self-interested, but rather as essential to the continuation of the group's current service to the consuming public. Suppose further that the strategy were successful. Legislation was passed which in fact provided substantial protection from competition, but in a statutory form arguably (albeit mediately) related to the interests of the consuming public. Would such a statute violate the U.S. Constitution?
The cynical among you will by now be laughing, not up your sleeves, but openly. "Suppose?" you will say. "What do you mean 'suppose'? That is state regulatory legislation as I know it. And you know darn well that so far as the federal courts are concerned it's constitutional. The Supreme Court has said so often and loudly, ever since 1937. 'Substantive due process' is dead where 'economic' issues are concerned."
And, indeed, it is. I have done nothing in my little hypothetical but describe an imaginary legislative scenario that we suspect is too often real and ask a constitutional question whose answer, unlike most questions of that genre, comes back crisp and clear. Am I trying to suggest that there is something to be discussed here? A tricky fact in the hypo, perhaps? Or am I merely one of those conservative constitutionalists who longs for Lochner, whose eyes mist over at the mere mention of Mr. Justice McReynolds?
Well, there is no trick and I confess that I have never counted Justice McReynolds among my heroes. But I do want to assert that there is something to be discussed. In fact I want to argue about it. I think anti-competitive regulation is a very serious problem. It is not just that such regulation distorts incentives, feeds inflation, and makes most of us somewhat worse off. There is a different frame of reference for such legislation: It demoralizes many whose efforts should instead be praised. It confiscates talent. It invades people's rights.
"Now, wait a minute," you must be saying. "Aren't you veering off toward 'liberty of contract' or some such defunct notion? Surely, we've heard all of this before." And I must confess that in some sense you have. But wait awhile. For I want to make a particular sort of argument here—an argument somewhat more methodological than substantive. I want to convince you that there is a coherent approach to serious judicial review of economic legislation. Moreover, I want to argue that our revulsion at "Lochneresque" review will not infect that approach. It need contain none of the objectionable elements that the critics of Lochner ascribe to that case and its progeny: No judicial second-guessing concerning the desirability of debatable legislative goals, and no formalistic exaltation of abstract economic liberty (or any other value) in the face of a contradictory social reality.
Indeed, I will argue that the federal judiciary's current posture, abdication of review, comes closer to producing the ills ascribed to Lochner and its progeny than would serious judicial review of economic legislation. It ignores serious individual interests that have an obvious constitutional basis. It implicitly exalts as fundamental a problematic constitutional value. It ignores social and political reality. It cannot be applied consistently. To remedy this situation I will propose a new cause of action, a claim to public-regarding legislation, that will permit such review—a cause of action grounded in no particular text, but in the Constitution as a whole. I shall further argue, but only cursorily, that the proposed cause of action is judicially manageable.
About the Author
Jerry L. Mashaw. B.A. 1962, LL.B. 1964, Tulane University. Ph.D. 1969, University of Edinburgh. Professor of Law, Yale Law School.
Citation
54 Tul. L. Rev. 849 (1980)