At Volokh Conspiracy, Eugene has given the bully pulpit to Clark Neily of the Institute for Justice, a libertarian “public interest” law firm.  The IJ has established the  Center for Judicial Engagement.

The courts were meant to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority.  But as the Institute for Justice has seen too often, judges are either unwilling or feel unable to enforce constitutional limits on the size and scope of government power.

Changing that is the mission of IJ’s Center for Judicial Engagement.  The Constitution was designed to be a bulwark of liberty against overreaching government, but it can only serve that vital function when judges actually enforce it.  Increasingly, however, courts are inclined to disregard constitutional limits on government power under the rubric of judicial minimalism or restraint, when often a more accurate term would be “judicial abdication.”  That must change.  The Center for Judicial Engagement will cut through unhelpful rhetoric about supposed judicial activism and simply ask whether judges are properly engaged in their role of interpreting and applying the Constitution.

Many readers will applaud this goal, reading into it what they believe to be the proper limits on governmental power.  Others will realize the sweetness of the words mask the potential deregulation of a wealth long-appreciated initiatives, leaving it to megacorporations to behave in a socially safe and acceptable fashion because market forces and enlightened self-interests compel it to do so. 

The IJ is engaged in legal action that many hear will vigorously applaud, such as challenges to the evil of civil forfeiture.  But as Neily discusses at VC, there are other issues high on its agenda.

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers.

Whether licensure of interior designers strikes you as an evil sufficiently worthy of attention, the argument behind the challenge is one that is likely to pique interest.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

In a world of legal fictions, where courts strain, to the point of sophistry, to find some explanation that would uphold the constitutionality of legislation despite its “true” purpose, the rational basis test is a killer.  What many consider “rights” that fall a penumbra or two shy of fundamental are regulated, maybe even criminalized, and this gets the courts’ seal of approval because some cockamamie rationale that no one actually believes has anything whatsoever to do with either the purpose or effect, under the rational basis test.  Not only are such fictions allowed, but they are used without the slightest sense of shame to uphold legislative action.

And I would be remiss not to mention that such silly gymnastics find their way into rationales upholding restrictions on fundamental rights as well, but let’s not talk about the  bizarre paragraph in Heller that undermines everything else in Justice Scalia’s decision. If J-dog were alive, he’d ironically admonish me to give it time.

The presumption of constitutionality, predicated on the notion that legislative action reflects the will of the people, and that courts should show restraint in their rejection under constitutional grounds lest they substitute judicial sensibilities, makes challenges difficult.  And they should be difficult.  And to suggest otherwise smacks of a cry for judicial activism, to demand that judges toss laws that are stupid, counterproductive, or, we believe, just plain wrong.  But those aren’t the test.  The legislature is entitled to pass laws that are stupid.  They just can’t enact laws that are unconstitutional.

Yet one can’t help but appreciate the IJ position that the reluctance to question the constitutionality of laws has become so overwhelming, particularly given legislative activism that either regulates or criminalizes everything shy of passing gas in public, as to render judicial review as an historic relic.

The thrust of the post, that rational basis analysis as the test of constitutionality for less-than-fundamental rights, resonates.  Why, one has to ask, do we persist with judicial fictions, that any explanation no matter how false and absurd, is sufficient for a law to pass constitutional muster?  What’s so wrong with real?  What’s so bad about limiting legislative initiatives to their intended purpose?  He’s got a point.