Judicial Abdication and the Rise of Special Interests
If the extreme judicial deference epitomized by the rational basis test is the wrong approach to economic legislation, what is the right approach? One answer is that economic rights should not be treated any differently in principle than the so-called “fundamental” rights that courts do protect. Scholars such as Bernard Siegan, Randy Barnett, and Richard Epstein have covered that subject in detail and have offered comprehensive theories of judicial review that are properly grounded in the structure of the Constitution as well as the political and moral principles on which it is based. Their approaches would require fundamental changes to government, which are certainly preferable, but not likely to occur anytime soon. In the meantime, courts can, and should, apply a standard of scrutiny that would remain within the existing framework of judicial review, but would rein in some of the worst abuses by the political branches of government.