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08/07/2011

Josh Blackman: Judging the Constitutionality of Social Cost
Michael Ramsey

Josh Blackman (The Harlan Institute) has posted Judging the Constitutionality of Social Cost on SSRN.  Here is the abstract:

The tiers of judicial scrutiny represent the Supreme Court’s attempts to balance three important concerns -- individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost -- a factor that has been integral in the Supreme Court’s balancing of liberty and security -- has been neglected. 

In The Constitutionality of Social Cost, I introduced a framework to understand how the Supreme Court has analyzed social cost in various contexts. In this article, I aim to build on that framework, and consider the interactions between social cost and the tiers of scrutiny, and identify the relevant considerations courts rely on to nudge individuals towards majoritarianism, or nudge society towards counter-majoritarianism. 

Social cost -- a concept often relied on by the Supreme Court, both explicitly, and implicitly, but only weakly-defined -- refers to negative externalities that can result from an individual exercising liberty, or, alternatively from the the state protecting collective safety or security. As individual liberty increases, the risk of the exercise of that liberty harming society (social cost) increases. Conversely, as the power of the state to provide for collective safety increases, the risk of the state harming individuals (social cost) also increases.

Scrutiny is effectively a question of how much deference and skepticism a court will give to the state and individual? Generally we think of rational basis scrutiny as the Court deferring to the determinations of the majority and exhibiting skepticism towards the individual’s liberty interest. Strict scrutiny, on the other hand, employs skepticism to the determinations of the majority, and deference to the individuals’ liberty interest. The quantity, and creator, of the social cost determines the level of scrutiny, and the commensurate level of deference and skepticism to liberty and security. 

When an individual’s exercise of liberty could result in high -- and arguably unacceptable -- social costs, courts become inclined to show deference to the interests of the state, and collective security, and exhibit skepticism about the individual’s liberty interest. In such cases, the court is unwilling to protect a liberty interest at the cost of harming the collective and majority interests. This is evidenced by rational basis review, where the individual bears the high burden of justifying his activity, and the state bears no burden.

Conversely, when the state’s attempt to provide for collective security could result in high -- and arguably too overbearing -- social costs, courts become inclined to show deference to the individual liberty interests, and exhibit skepticism about the state’s claim to power to provide for collective safety. In these cases, the court is unwilling to sanction the state’s power at the cost of harming individual liberty interests. This is evidenced by strict scrutiny, where the state bears the high burden of justifying its activity, and the individual bears no burden.

Rational basis review and strict scrutiny review serve as the Supreme Court’s mechanism to protect both liberty and collective safety. Ideally, when the social cost of liberty (or security) remain below a certain level, the Court’s intervention -- and necessity of picking sides and assigning burdens -- is largely unnecessary. However when the social cost from liberty (or safety) becomes too high, the Court’s skepticism of the potentially dangerous liberty (or safety) interest results in deference towards the at-risk attribute, safety (or liberty). This social cost shift, subtly, and implicitly employed through judicial review, aims to nudge society towards more palatable tradeoffs of liberty (or security) that yield fewer social costs. 

In this sense, rational basis and strict scrutiny, viewed as majoritarianism and counter-majoritarianism institutions, are mirror images of each other, reflected by social cost.