William F. Freivogel’s blast at Judge Pasco M. Bowman of the 8th U.S. Circuit Court of Appeals in a Dec. 13 article, “Judge: New Deal Was Bad Deal,” following a speech Bowman gave at the Cato Institute, contains a number of assumptions about the proper role of the judiciary in a free society that should not go unchallenged. Bowman has often set forth his vision of our constitutional order. But that vision is itself one that inspires, although Freivogel plainly thinks otherwise.
Finding his roots in the Founders, Bowman argues that the rights of life, liberty, and property are of a piece, which means that property and contract, the legal foundations of our free market system, deserve as much judicial protection as any other rights. That indeed is how the courts of the land saw it for nearly 150 years. All that changed, however, with the jurisprudence of the New Deal, which Freivogel supports. Citing “the court’s (1938) shift in concern from economic to individual rights,” Freivogel praises the “closer scrutiny” the courts went on to give laws that restricted First Amendment rights, civil rights and the right to vote. As for laws restricting economic rights, the review of which courts all but abandoned, Freivogel cites Justice Robert H. Jackson to the effect that these restrictions “can be redressed by the processes of the ballot box or the pressures of opinion.” Thus did two “classes” of rights emerge.
There are at least three objections to be raised against Freivogel’s — and our current — view of jurisprudence. First, the distinction between economic and individual rights is spurious. Rights of property and contract are nothing if not the rights of individuals, a point Bowman made far more eloquently than Freivogel’s caricature conveys.
Second, neither these two “classes” of rights nor the idea that courts should protect one class through strict scrutiny while abandoning the other to the political process is found in our Constitution. The New Deal Court simply created those distinctions out of whole cloth.
Finally, the idea that our economic liberties can be left to the vagaries of the political process is no less dangerous than leaving First Amendment or any other liberties to that process. After all, we have courts and a Bill of Rights just because we cannot depend entirely upon the political process for protection. Is it any different with a landlord who wants to rent his property at market rates, free from rent controls, or a businessman who wants to enter a market, free from regulations?
Over and over we have seen, since the New Deal, how legislators, bureaucrats and special interests rig markets in their favor while courts look the other way because this is “mere economic regulation.” Yet this rigging is what Freivogel is defending when he champions the jurisprudence of the New Deal.