It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [107]
The Presumption of Liberty
How then is this procedural requirement of public necessity and expediency enforced? The answer is by means of judicial review, which allows courts to invalidate unconstitutional laws. When learned judges have adequately scrutinized our officials’ commands and determined that they stem from the Constitution and do not infringe upon our natural rights, only then are those laws legitimate, giving rise to a moral obligation to obey them. The same moral imperative that lets me do as I please in my own house prevents me from doing as I please in my neighbor’s house. That imperative is freedom: The unfettered ability to make personal choices.
By contrast, without judicial review, we would have to trust the legislature and the executive to abide by the Constitution’s protections, which for reasons already discussed, is entirely inadequate. For all of their consistent and plentiful historical abuses of the Constitution, we should have no reason to believe that Congress and the President will remain within their constitutionally permitted bounds. It is for this reason that our Founders intended that “the Judges, as expositors of the Laws would have an opportunity of defending [our] constitutional rights.”1
Sadly, judicial scrutiny of legislative and executive commands has been woefully inadequate, allowing our natural rights to be circumvented time and again. Consider the case of United States v. Carolene Products (1938). In 1923, Congress enacted the Filled Milk Act, which banned the interstate sale of skim milk reconstituted with coconut oil. Filled milk became popular during the era as an inexpensive alternative to comparable dairy products; the dairy industry lobbied Congress to eliminate this new source of competition. Although the purpose of the statute was purely to shield the government’s friends in the dairy industry, it was not so cleverly passed under the guise of a public health and consumer fraud law: Congress claimed that filled milk was unhealthy, and that it was manufactured to look like real milk, thus confusing consumers. The difficulty was that there was no evidence whatsoever that it was injurious to public health, and the claim that consumers would be “tricked” into buying it was as ridiculous as it sounds; and Congress had no authority to regulate for health or safety. Those bases for law were retained by the Tenth Amendment for the states.
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In the Carolene Products case, the Supreme Court, ever the “impenetrable bulwark against every assumption of power in the legislative or executive,”2 addressed the constitutionality of the Filled Milk Act. Although it clearly transgressed fundamental economic liberties, interfered with the natural workings of the market, and deprived consumers of the natural right to choose a cheap and perfectly healthy food product, the Court upheld the statute, notwithstanding its constitutionally illegitimate purpose. The Court’s reasoning was that the statute should be presumed constitutional, and thus the burden was on the defendant company to prove that Congress could have no constitutional authority and no lawful basis for regulating the sale of the product; a nearly impossible showing. By requiring a presumption of constitutionality instead of a presumption of liberty, the Court permitted Congress to transgress economic liberties for almost any reason it wished.
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The presumption that legislation was constitutional unless proven otherwise first arose during the New Deal era, and its significance in facilitating the growth of the welfare state cannot be overstated. Prior to the presumption of constitutionality, legislatures were required to prove that legislation was necessary (and hence an acceptable regulation of one’s liberties) with empirical information; the very information that the legislature would presumably have used in formulating its policy. Thus, if upon surveying the relevant facts, the legislature found there was a dire need for the regulation, the state would of necessity present to