« Congress Should Mind Its Own Business | Main | Power's Playground »
August 16, 2005
Someone to Watch Over Them
 |
Richard Epstein
is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago. |
As I read the remarks of Ed Lazarus and my colleague Cass Sunstein, I could not resist thinking back to the famous Gershwin line, “I need someone to watch over me.” Change the singular to the plural and we have the position of both Congress and the states.
The problem in most cases is not whether Congress or the states are better at protecting the liberties of ordinary subjects. Sometimes neither does a particularly good job. Lazarus bemoans the sad state of public sentiment on the issue of gay rights, including those who want to have marriage ceremonies approved by the state. If we had a stronger sense of individual liberties against all government interference, then Lawrence v. Texas would not stand out like a sore thumb. The state conceded that there was no health interest for the statute, so all that is left to justify state restrictions through its licensing power is the sentiment of the majority that does takes offense at how other individuals lead their own lives.
The right answer to that is not to block them with state powers but to use the power that private organizations have (or least should have) to shape the moral views of their own smaller communities. This framework talks about strong rights of association and limited police power justifications. It sounds like an extension of the Lochner formula, whose revival would be a most welcome development here as in the area of economic liberties.
I also take issue with the Sunstein position that Senator Specter is onto something good when he raises the usual anxieties over the commerce clause. I can’t think of any strong reason why "humility and modesty in reviewing the decisions of a coordinate branch of government" squares with a sensible system of judicial review. It certainly should not be used to give Congress a blank check on civil liberties issues. Nor should it allow the federal government to run roughshod over the states which also count as a coordinate branch of government.
Perhaps there is something in decisions like Lopez and Morrison which give others pause, but I can see no reason for having the federal government weigh in with a second set of sanctions on matters such as gun usage and criminal rape which are already dealt with under state laws. The question here is whether there is any strong textual, structural, historical or functional argument that supports the extravagant use of federal power under the commerce clause. I have yet to see any demonstration in favor of the modern expansionist position on any of these grounds.
Posted at August 16, 2005 02:13 PM