Judicial protection of our economic freedoms under the so-called rule of law* languishes today under a pile of ridiculously reasoned Depression-era precedents extorted from the Supreme Court of the United States (henceforth SCOTUS) by the then President of the United States (henceforth FDR). He threatened them with loss of face from the overturning of their precedents defending economic freedom -- Oooo, scandalous! -- by a new SCOTUS altered by his appointment of six new, presumably progressivist Justices after having Congress quite constitutionally increase the number of Justices on the Court from nine to fifteen.
Sidebar? Sure. The Supremes aren't numbered nine in the Constitution, you ask? Well, no. You must recall that the Constitution requires only one Supreme Court and, failing to define the number of Justices on it, leaves to Congress the power to decide on any number larger than one. Don't remember that? Well, read it here. And while you are at it, read carefully for the requirement that all lower courts respect SCOTUS precedent. No? Don't find it? Well, neither do I, now that you mention it. But I digress from the tale of FDR's extortion of SCOTUS, known in the day as Court Packing. Never mind, though. You got that point.
Those extorted Depression-era precedents that SCOTUS continues to honor include the scandalously tyrannical Footnote Four of Carolene Products -- you can't make this stuff up -- in which SCOTUS announces to legislatures, both Federal and State, its intent to strictly scrutinize only those legislative transgressions of rights explicitly numbered in the Bill of Rights, but to fully and completely disregard the Ninth Amendment which says to all who can read -- except Judges -- that the enumerated rights are not superior to other rights individuals have always had.
Really. I swear I'm not making this up. Here is the entire text of the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The entire text of the infamous Footnote Four can be found in WikiPedia's discussion of the Carolene Products decision, linked to above. It's gibberish. Presumption of constitutionality, blah, blah, blah, exacting judicial scrutiny, blah, blah, blah. Judges take it very seriously. Therefore so do lawyers. Boom. There went your economic liberty.
That ridiculous precedent is known as " the switch in time that saved nine." I can't imagine why.
After that footnote two things happened. First, legislatures far and wide began to trample willy-nilly on all sorts of economic rights we once possessed as individuals, such as the right to freely contract for one's services at any price one chose. To those legislatures, SCOTUS's footnote was like Monty Hall on Let's Make a Deal shouting "Come on down!" And, second, a free public education was established, to be administered by teacher's unions to ensure that no one would learn to read anything, much less the Constitution. Okay, okay, you're right... in the latter case, I exaggerate a bit. That perversion of public school education didn't happen till the seventies.
So this respect-for-precedent thing comes right out of the Judicial Handbook. It's Rule Number One: "What Judges have said is more important than what the Constitution says." There's only one other rule and it says "In the event of contradiction don't read the Constitution, read Rule Number One."
If that sounds like the Rule of Law to you, you must be, or want to be a judge. It apparently sounds okay to Judge Jeffrey Sutton, a G. W. Bush appointee to the Sixth Circuit Court of Appeals who couldn't get to the Constitution past Rule Number One and SCOTUS's prior Commerce Clause pronouncements in his decision supporting the individual mandate in ObamaCare. Now, Sutton -- probably not related to Willie Sutton the bank robber, but who knows -- is not a bad guy, he's just confused about the conflict between his oath to defend and protect the Constitution and the role the Judicial Handbook specifies for him in the process.
But if he's confused, there will always be those like Orin Kerr, who writes on the renowned libertarian law blog The Volokh Conspiracy -- though he's apparently not all that freedom-minded -- to keep him on the straight and narrow. Perhaps Orin wants to be judge, though I can't understand why, as he's already more powerful than that: he's a law professor who teaches the Judicial Handbook to young pre-judge minds!
Here's the problem with judicial precedent standing between you and your Constitution: in the judicial process, the words of the Constitution become the message passed around the room from person to person to person in a game of telephone, distorted just a little in decision after decision, until they mean nothing, or worse, exactly the opposite of what they meant when ratified. If the ratified words of the Constitution are that malleable there is no law.
That's why there is no limit today to the power granted by the new-more-powerful, enhanced-by-precedent, nothing-can-stand-in-its-way Commerce clause. The Congressional power to regulate interstate commerce now somehow implies the Congressional power to force intrastate commerce. Really! Shakespeare himself couldn't have made this stuff up. I bet the Commerce Clause precedents would even justify a law forcing everyone to buy a Gideon Bible. Or the Book of Mormon. Or Das Kapital. Or Mein Kampf. Oops! I should be careful what I suggest.
And all of that hides behind the phrase "rule of law." Court precedents like these have paved The Road to Serfdom.
Orin Kerr is flat wrong. It's time for all judges at all levels to start respecting the original meaning of the Constitution over precedent, especially those extorted Depression-era precedents that opened the door to our decades long journey into economic tyranny.
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* I have written of the need for the rule of law and of freedom's weakness in the face of a determined assault from all three branches of government here.
