That elusive distinction between rights courts are competent at articulating and protecting, and rights they are not

|The Volokh Conspiracy |

Why do liberals generally believe that courts should intervene to protect certain rights, like the right to marry or to terminate pregnancy, but not others, such as the right to pursue an honest livelihood?

It can't be because of originalist considerations, which if anything suggest the opposite. Nor does the text of the Constitution, which only speaks of "liberty," favor one type of right over another.

According to Slate's Mark Joseph Stern, it's because "judges are much better at describing and defending" those "rights relating to personal dignity and autonomy," rights he (and the Court) calls fundamental.

Yet I can't see any reason why, for example, one would believe judges would be especially good at figuring out the right balance between the acknowledged state interest in preserving human life and the "fundamental right" to terminate pregnancy, as the Supreme Court has been doing since Roe v. Wade. And there's no reason I can think of that the courts would be better at determining the scope of abortion rights than at determining whether economic regulation is justified by a state's asserted health and safety concerns or is an arbitrary interference with economic liberty.

Nor is it clear why, for example, the "fundamental right" to send one's child to private school (Pierce v. Society of Sisters) or of parents to deprive loving grandparents of court-ordered visitation rights (Troxel v. Granville) relate to "personal dignity or autonomy," but the right of a hard-working immigrant to engage in her eyebrow-threading business without meeting arbitrary and oppressive requirements—the issue that provoked Stern's column—is not.

No, the distinction between the liberty rights the Supreme Court has protected and those it has not since the New Deal primarily comes down to the policy preferences of liberal elites, who believe that intellectual and intimate pursuits should very much be free from government regulation, even when the government has a reasonably strong justifications for such regulation, but that economic activity should be subject to the government's whim.

Admittedly, it's a bit hard to take Stern seriously when he claims that the Texas Supreme Court's eyebrow-threading decision means that the court has "effectively declared that laissez-faire capitalism is the only true form of American liberty"—the court's decision not only doesn't come within a thousand miles of imposing anything that might reasonably be called "laissez-faire," it also doesn't denigrate any other liberties protected under modern constitutional law.

But hyperbole is the stock in trade of those who see any meaningful review of arbitrary economic legislation by any American court as the beginning of the end of American economic progressivism, and the article is nonetheless instructive for its inability to articulate a coherent rationale for why courts are competent to tackle some of the complex philosophical and moral issues of our times, but should act like potted plants when the government enacts and applies overtly protectionist economic legislation that burdens small-scale entrepreneurs.

UPDATE: I should note that there have been a fair number of liberal legal commentators over the years, most prominently Laurence Tribe, who have supported greater judicial scrutiny of economic legislation, particularly when the laws in question interfere with the rights of individuals to pursue an occupation. E.g., Laurence Tribe, American Constitutional Law 378 (2d ed. 1988) (arguing that the government should "not take away without clear and focused justification . . . a fair opportunity for an individual to realize her identity in a chosen vocation").

I can't be sure of cause-and-effect, but this seems to have become less common on the left since libertarian groups like the Institute for Justice have started seriously pursuing this agenda, and since the Supreme Court has threatened to restore other limits on government power to regulate the economy, as with the Commerce Clause.