The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Texas Supreme Court's economic liberty decision reminds me of an interesting question: Do the arguments in favor of deferring to legislatures when it comes to broad federal constitutional "liberty" claims—whether economic liberty or personal liberty—fully apply to state constitutional liberty claims? (I set aside claims under narrower rights that are specifically set forth in the constitutional text, such as the freedom of speech, the right to bear arms, the freedom from unreasonable searches and seizures, and so on.) Or should we be more open to state courts' "judicial activism," "judicial engagement," "judicial creativity," "Lochnerism / Roeism," and the like in applying state constitutions than we are to federal courts?
First, some arguments do apply equally, for instance:
- Legislative Authority: The power to make law is generally given by our constitutions to legislatures.
- Judicial Abstention from Contested Moral/Empirical Debates: Courts are supposed to make judgments based primarily on legal principle (or on constitutional text), and second-guessing legislative judgment under broad concepts such as "liberty" involves courts having to make subjective and unprincipled judgments about contested empirical matters and contested moral matters.
- Capacity to Investigate Policy Questions: Legislatures and agencies are better at investigating big-picture economic and technical factual questions about what laws are actually likely to be effective.
On the other hand, some arguments don't apply equally, at least in many states:
- Democratic Legitimacy: The appointed and life-tenured U.S. Supreme Court Justices are often viewed as lacking the democratic legitimacy of an elected judiciary (especially since they can serve for many decades after the one democratically authorized act in their careers, which is their appointment). But in many states, supreme court Justices are elected and have to be reelected in contested races, where voters can pass judgment on the Justices' decisions and their approach to judging.
- Difficulty of Overturning Judicial Decisions: The U.S. Supreme Court Justices aren't just hard to remove; their decisions interpreting the U.S. Constitution are hard to overturn, since that requires either a 2/3 Congressional majority proposing a constitutional amendment (or 2/3 of the states calling for a convention to propose it), plus 3/4 of state legislatures ratifying it; the appointment of several new Justices (which might not happen for many years); or other actions—such as impeachment—that are contrary to American traditions and are seen as creating something of a constitutional crisis. But in most states, a state constitutional amendment is much easier to enact.
- Federalism: Many people bristle at Supreme Court Justices who sit in Washington, D.C., and who come from a handful of states, setting rules for the whole nation. That concern doesn't apply, at least at the same magnitude, to state supreme court Justices. Say what you will about today's Texas economic liberty decision, for instance, but it was written by Texans who were recently elected by Texans, who will be up for reelection by Texans, and whose rulings can be revised by majority vote of Texans (so long as it's proposed by 2/3 of each house of the Legislature whose handiwork the state court has just struck down).
- Experimentalism: Many people also condemn Supreme Court decisions that set a standard for the whole nation, thus cutting off possible experimentation that could provide valuable information about what actually works. State constitutional decisions forbidding some kinds of regulations generally don't cause this problem, at least in an equally serious way. If some state courts, for instance, recognize a state constitutional right to assisted suicide, or a state constitutional right to braid hair or trim eyebrows using thread without heavy regulation, other state legislatures will likely remain free to continue trying these regulations; and if the regulations look beneficial, then the contrary decisions by some state courts could be reversed.
In any event, I'm not sure which set of arguments should prevail, but I thought I'd flag this, especially given today's same-sex marriage decision and today's Texas economic liberty decision.