The PPACA arguments has resulted in loads of comments and analysis, some on the anti side defending their approach as if "liberty" itself was at stake if they didn't win. This gets tiresome as does some of their concerns (I'm looking at you Randy Barnett) that somehow "liberty" was suddenly given a cold shoulder sometime c. 1937. I keep on asking one person, e.g., what his ideal moment of judicial interpretation is, since many groups don't think the early 20th Century is that ideal. Said person ignores me. The below was posted in response to one such move.
The principle of presumptive constitutionality of legislative action -- action that is a result of the republican process in which the people vote for representatives who swear/affirm to uphold the Constitution and via Madisonian dynamics (or the less pure form present in the real world) settle upon public policy -- goes back to the 1790s. Judicial review was deemed a principle of constitutional government, but overturning legislation, particularly on substantive grounds, would only occur in the clearest cases.*
The 1930s reaffirmed this principle but noted that in various cases that a more guarded eye would be present. Carolene Products, FN4 is the seminal summary. The courts then did much more to look at free speech, criminal protections, equal protection, etc. Such cases was rare before then. Before the New Deal, e.g., the 1A was rarely given much of a look by the USSC. After it, a slew of cases can be listed that overturned legislation. In such areas, "liberty" was not given a more limited look -- that is, if we define it to entail closer judicial review. Thus, e.g., concerns that minorities did not get proper representation warranted less restraint over the majority process than certain economic matters as did private rights over more public matters. This has long roots too in early discussions of judicial review though there has been some changing views on the contours.
Lawrence v. Texas did not merely look at "liberty" but cited precedents that fit into the liberty interest in question. If something else was at stake, let's say the liberty to be a hairdresser w/o a license, such precedent would not be readily available. The case therefore does not look as open-ended as the OP argues [btw, I saw a form of this article by him in the Cato Supreme Court review of the case almost a decade ago].
Finally, I agree that federalism and enumerated powers protects "liberty." It works both ways (see, e.g., the term limits case, Kennedy concurrence) -- IF Congress has a power, it can protect our liberty to properly let it carry it out to protect the public good. This is how SG Verilli ended his oral argument and it is how supporters of the PPACA think it ultimately furthers liberty. But, it is curious to me how courts that EXPANDED judicial review in fact in many areas is seen as less liberty protecting. The reality of the situation is the judges have a certain amount of capital. When the modern Court expanded its reach over civil liberties, they restrained it over other areas. And, even pre-New Deal, the strictness of review was at best mixed, some periods of particular concern to justices, and even then not in all areas (cf. Lochner v. NY and Plessy v. Ferguson)
Kennedy does in a fashion have a broad view of "liberty" but the net result is that the exact line is hazy. Lawrence itself is a case in point. It cites fundamental rights cases but some argue it is merely a rational basis case. This would water down the protection as Casey did to Roe.
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* Thus, Justice Chase in Hylton v. U.S.:
The principle of presumptive constitutionality of legislative action -- action that is a result of the republican process in which the people vote for representatives who swear/affirm to uphold the Constitution and via Madisonian dynamics (or the less pure form present in the real world) settle upon public policy -- goes back to the 1790s. Judicial review was deemed a principle of constitutional government, but overturning legislation, particularly on substantive grounds, would only occur in the clearest cases.*
The 1930s reaffirmed this principle but noted that in various cases that a more guarded eye would be present. Carolene Products, FN4 is the seminal summary. The courts then did much more to look at free speech, criminal protections, equal protection, etc. Such cases was rare before then. Before the New Deal, e.g., the 1A was rarely given much of a look by the USSC. After it, a slew of cases can be listed that overturned legislation. In such areas, "liberty" was not given a more limited look -- that is, if we define it to entail closer judicial review. Thus, e.g., concerns that minorities did not get proper representation warranted less restraint over the majority process than certain economic matters as did private rights over more public matters. This has long roots too in early discussions of judicial review though there has been some changing views on the contours.
Lawrence v. Texas did not merely look at "liberty" but cited precedents that fit into the liberty interest in question. If something else was at stake, let's say the liberty to be a hairdresser w/o a license, such precedent would not be readily available. The case therefore does not look as open-ended as the OP argues [btw, I saw a form of this article by him in the Cato Supreme Court review of the case almost a decade ago].
Finally, I agree that federalism and enumerated powers protects "liberty." It works both ways (see, e.g., the term limits case, Kennedy concurrence) -- IF Congress has a power, it can protect our liberty to properly let it carry it out to protect the public good. This is how SG Verilli ended his oral argument and it is how supporters of the PPACA think it ultimately furthers liberty. But, it is curious to me how courts that EXPANDED judicial review in fact in many areas is seen as less liberty protecting. The reality of the situation is the judges have a certain amount of capital. When the modern Court expanded its reach over civil liberties, they restrained it over other areas. And, even pre-New Deal, the strictness of review was at best mixed, some periods of particular concern to justices, and even then not in all areas (cf. Lochner v. NY and Plessy v. Ferguson)
Kennedy does in a fashion have a broad view of "liberty" but the net result is that the exact line is hazy. Lawrence itself is a case in point. It cites fundamental rights cases but some argue it is merely a rational basis case. This would water down the protection as Casey did to Roe.
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* Thus, Justice Chase in Hylton v. U.S.:
it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear caseAnd, only two federal laws were struck down until the 1860s.