Josh Blackman (South Texas College of Law) has posted The Burden of Judging (8 NYU Journal of Law & Liberty 1105) on SSRN. Here is the abstract:
Constitutional law is built on the bedrock foundation that courts should defer to the democratic process, especially in the context of economic regulations, unless the law touches on certain "fundamental rights" or affects "discrete and insular minorities." Three important books on constitutional theory challenge and emphatically reject this principle: "The Classical Liberal Constitution" by Richard Epstein, "Restoring The Lost Constitution: The Presumption of Liberty" by Randy Barnett, and "Terms of Engagement" by Clark Neily. All three books powerfully plow through a dense hallowed ground of judicial review and economic liberty, and spring from a shared intellectual fountainhead. After reviewing these three insightful works, I develop two complementary accounts of how judges decide cases: "public choice constitutionalism," and "the burden of judging."
First, public choice theory presumes that many laws are the end result of "interest group" politics, aimed at concentrating benefits on favored groups and dispersing the costs. Public choice constitutionalism provides a judicially-imposed check to this rent-seeking and capture. There are shades of public choice constitutionalism embedded in our Constitution, as evidenced by the text and history of the doctrine of Enumerated Powers and Federalism, the Contracts Clause, the Takings Clause, the 14th Amendment, and elsewhere in our founding documents such as The Federalist. Through engaged judicial review, public choice constitutionalism can serve to correct "government failures" in the sense that judicially-enforced antitrust law corrects "market failures."
Second, based on a refined understanding of public choice constitutionalism, I provide an alternate understanding to the Supreme Court’s balkanized approach to judicial review. Beyond the perfunctory task of labeling a right fundamental, or noting that strict scrutiny applies, the real judicial heavy lifting occurs at the outset — placing a burden on either the individual or the government, and calibrating the weight of that burden. Viewing scrutiny in terms of who bears the burden, and how strong the burden is, offers a more accurate description of the Supreme Court’s decisions when it avoids talking about scrutiny. More importantly, this theory helps to reconcile the Court’s varied opinions that meander among, or even disregard, the tiers of scrutiny. Instead of chiseling out the so-called tiers of scrutiny, accounting for these burdens serves as a more accurate descriptor of the manner in which governments and individuals have their constitutional rights either vindicated or vitiated. This task — not an easy one, but a necessary process that cannot be shirked — is the burden of judging.