Courts

Abortion, Liberalism, and Limiting Government Power

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In a column last week in the Richmond Times-Dispatch, A. Barton Hinkle observed that the passage of some meddlesome and arbitrary new anti-abortion restrictions in Virginia has pro-choice advocates sounding like "libertarian advocates of laissez-faire capitalism." As Hinkle put it:

Abortion-rights supporters fume that the new rules really have nothing to do with protecting consumers and are, instead, part of an ideological campaign to "get" their industry. The same might be said about other industries fighting other regulations…. That people with agendas exploit government power for political ends is not exactly news. Want to stop them? Limit government power in the first place.

At The American Prospect, progressive writer Adam Serwer objects, arguing that Hinkle ignores a central component of liberal thinking. As Serwer writes:

But "limiting government power" in this context wouldn't solve the problem, at least as far as liberals are concerned. Liberals believe women have the fundamental right not to be forced to carry pregnancies to term. But that right is useless if you can't exercise it because you simply can't afford to do so. So they support government aid to organizations that can provide family planning services to women who wouldn't be able to afford them otherwise. If you simply removed government from the equation entirely, you'd still be left with women unable to terminate an unwanted pregnancy simply because they lack the financial means.

Serwer is probably correct that liberals and libertarians will never agree on whether the government should fund social welfare organizations. But that's not the only way to think about "limiting government power." In fact, when it comes arbitrary and unnecessary regulations, government spending isn't part of the problem at all. The problem lies with the courts.

For more than 70 years the American legal system has demoted economic rights to a sort of second-class status. The key precedent here is United States v. Carolene Products Co. (1938), where the Supreme Court upheld a federal restriction on milk substitutes, declaring that "the existence of facts supporting the legislative judgment is to be presumed." As long as an economic regulation "rests upon some rational basis within the knowledge and experience of the legislators," the Court held that it must defer to the lawmakers and presume the legislation to be constitutional.

The result has been disastrous, with the courts rubber-stamping the vast majority of economic regulations without even bothering to check if those regulations served a legitimate government purpose. That's a major reason why we see so many stupid and obviously unnecessary regulations appearing on the books. The deck has been stacked in their favor. Yet we don't let the courts presume the constitutionality of laws restricting free speech or privacy; why should economic rights receive any less protection?

So here's one way to limit government power: Subject all laws and regulations to the same strict scrutiny in court.