One of the great myths of constitutional law is that the New Deal Court completely eviscerated the Due Process Clause requirement that restraints on liberty not be irrational or arbitrary. In the canonical 1938 case of U.S. v. Carolene Products, Justice Stone wrote “that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis.” He then elaborated:
Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.
Indeed, it is a little known fact that the 1928 Filled Milk Act’s bar on the interstate sale of Milnut – later renamed “Milnot” — that was upheld in Carolene Products was later invalidated by a federal district court in 1972 as irrational when it was shown that other similar products were being allowed into commerce. In his opinion, District Court Judge Robert Morgan provided the constitutional standard: “While Congress may select a particular evil and regulate it to the exclusion of other possible evils in the same industry, any distinction drawn must at least be rational.”
On the basis of the evidence presented to him at trial, “it appears crystal clear that certain imitation milk and dairy products are so similar to Milnot in composition, appearance, and use that different treatment as to interstate shipment caused by application of the Filled Milk Act to Milnot violates the due process of law to which Milnot Company is constitutionally entitled.” Whatever previous “dairy market conditions and dangers of confusion” had led to the passage and judicial upholding of the Filled Milk Act many years ago, Judge Morgan found that these “have long since ceased to exist.” In short, the Due Process Clause required that the Milnot Company be allowed to present evidence to an impartial judge to show the irrationality of the Filled Milk Act.
For the New Deal Court (and all courts before), then, the rationality of a statute was a meaningful standard. What changed even before the New Deal was who bore the burden of proof for showing that a restriction on liberty was irrational or arbitrary. In Lochner and other cases, the Court appeared to place the burden on the government (as I favor doing); by the time of Carolene Products, the burden had already been shifted to the challenger (as Justice Harlan had advocated in his Lochner dissent).
What we think of as the meaningless “rational basis” test actually comes from a 1955 Warren Court case of Williamson v. Lee Optical, in which the Supreme Court reversed the lower court’s realistic appraisal that restrictions placed on opticians were irrational means of protecting the health and safety of the public. In an ironic repudiation of realism, Justice Douglass replaced a realistic rationality review by instead accepting any hypothetical reason for a law that a court might imagine. Yet the Court has never expressly repudiated the Carolene Products approach, and has since oftentimes employed a “rational basis with teeth” approach that seems inconsistent with Williamson.
Now comes a cert petition from the Institute for Justice that gives the Court an opportunity to reaffirm the reasoning of Carolene Products, which allows individuals to challenge the “the constitutionality of a statute predicated upon the existence of a particular state of facts . . . by showing to the court that those facts have ceased to exist.”
In Heffner v. Murphy, the Institute for Justice is challenging the rationality of several restrictions on the ownership and operation of funeral homes in Pennsylvania. While the lower court had ruled that, in light of changing circumstances, these rules were irrational, the Third Circuit rejected the principle that the rationality of a statute depends on the rationality of its application now: “As a threshold matter, we surmise that much of the District Court’s conclusions regarding the constitutionality of the [Funeral Law], enacted in 1952, stem from a view that certain provisions of the [Funeral Law] are antiquated in light of how funeral homes now operate. That is not, however, a constitutional flaw.”
But if “rationality” is what constitutionally justifies a restriction on liberty, there is no good reason why a law should not still be rational when applied to a particular person, and why that person should not be able to show why the law was irrational as applied to his activity, the way it was to Milnot. As the Institute points out in its brief:
The rule of Carolene Products protects our constitutional rights by ensuring that the enforcement of a statute must be rational, and not merely that the statute itself was rational at some distant point in the past. The changed-circumstances doctrine is a particularly important protection because the separation-of powers principles at the heart of rational-basis review are attenuated when the factual circumstances of a law’s passage bear little resemblance to the real world many years later.
This is the appropriate way for constitutional law to “live” and adjust to changing circumstances in the context of a written constitution with a fixed original meaning.
It bears emphasizing that the rule of Carolene Products is not a rule about how the Constitution itself changes, a rule about how courts ought to strike down unpopular laws when public sentiment shifts, or a rule allowing courts to institute their own social and economic policies. The meaning of the Constitution remains the same, public sentiment is irrelevant, and courts may not substitute their preferences for those of the elected branches. Instead, the modest rule of Carolene Products simply ensures that when government officials take away a liberty interest today, they do so for reasons that are rational today, not merely for reasons that were rational long ago.
Allowing as applied challenges to the rationality of a statute based on changing circumstances is an approach that both originalists and “living constitutionalists” can and should embrace. And a realistic rationality review allows for the protection of liberty without the heightened scrutiny that results from finding a particular liberty to be a “fundamental right.”
Under existing doctrine, elevating a liberty to “fundamental rights” status creates a virtual “trump” over legislative power, so must be only sparingly employed. The much easier-to-satisfy rationality review allows both greater exercise of governmental powers while still protecting liberty, and that is so even when following a presumption of constitutionality in favor of the statute.
The difference between Carolene Products and Williamson is whether or not the presumption of constitutionality is rebuttable. The New Deal Court insisted it was; the Warren Court suggested it was not. Lower courts have been divided ever since, which would make this a very useful, as well as very important, grant of cert.
By taking seriously a showing that a restriction of liberty is irrational, the Court can get itself out of the business of recognizing some “preferred freedoms” as so “fundamental” that they merit protection while other liberties do not — while avoiding the super scrutiny that interferes with the proper discretion of legislatures. Ironically, the Court can accomplish both objectives simply by following its New Deal precedent.