A Curious Call for More Judicial Activism: Comment on Alexandra Klein's "The Freedom to Pursue a Common Calling"

I. IntroductionH.L. Mencken said, "Democracy is the theory that the common people know what they want and deserve to get it good and hard."1 Alexandra Klein demonstrates that while Mencken's impatience with democracy may be justified, his observation is built on a fallacy: "the people" do not exist; majorities and minorities do.This is a foundational part of U.S. constitutional history. The division of federal powers among three branches, the division of national powers between the states and the federal government, the justification for a large republic, staggered electoral terms, and an independent judiciary with the power to declare legislation unconstitutional are all part of a governmental scheme designed to check the power of popular majorities.2The same fear of tyrannical majorities that animated the Framers also prompted the Supreme Court to subject legislation that threatened the freedom of "discrete and insular minorities" to a much more exacting scrutiny than it used for other legislation.3 In United States v. Carolene Products, Justice Stone stated this in the famous fourth footnote to his opinion of the Court:There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, on restraints upon the dissemination of information, on interferences with political organizations, as to prohibition of peaceable assembly.Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.4But Carolene Products signaled a surrender by the Court. It would no longer subject economic rights to the same strict scrutiny that it continued to employ when dealing with discrete and insular minorities and more fundamental rights such as those noted in footnote four.5 Working from the assumption that economic legislation affected rich and poor alike and, therefore, the political process would resolve any controversies regarding such laws, the Court retreated from imposing anything more than "rational basis" review on economic legislation.6While this may have made sense in 1938, Alexandra Klein argues that it no longer does so. She demonstrates that the economic marketplace does indeed generate discrete and insular minorities. The market is neither fair nor efficient. It is as subject to domination by special interests akin to the factions Madison feared in Federalist 10 as the political marketplace. Economic rights, she argues, are no less important than the other "fundamental" rights outlined by Justice Stone. Insofar as the economic marketplace is unjust, the Court can no longer justify treating challenges to economic regulations with the "kid gloves" of rational basis review.II. The EvidenceIn focusing on occupational licensing schemes, Klein brilliantly uses what may seem to be very local or arcane issues to demonstrate a fundamental flaw in the Court's approach to states' rights, the federal division of powers, and economic freedoms. There is, as she notes, something peculiarly wrong in the political and economic system if it can take longer to become a pet groomer than it does to become an emergency medical technician. …