A New Constitutional Court

In order to assure that laws do not unduly impact individual liberty, Congress should create a Constitutional Court. Its functions would be to:
  • automatically give every new law and its Liberty Impact Statement a preliminary review to determine that the three requirements of strict scrutiny are met before the law can go into effect.
  • advise legislators with respect to the three requirements of strict scrutiny before new laws are even voted on.
  • determine, upon the application of interested parties, whether existing laws meet the three requirements of strict scrutiny.
  • determine, upon the application of interested parties, whether any law as applied in any given instance meets the three requirements of strict scrutiny.
  • Any existing law that has not passed a full review by the Constitutional Court within the past five years (and any designated "emergency measures" adopted without review) would be subject to full review by the Constitutional Court on application by interested parties. If the Constitutional Court does not find that an existing law meets the three requirements for liberty (that is, strict scrutiny), it would have the power to suspend the law, in whole or in part.

    The Constitutional Court would have jurisdiction over all federal statutes and all state statutes regulating matters that the federal government also has power to regulate. If a state creates its own constitutional court that does preliminary reviews of is own new statutes, the federal Constitutional Court would not have the preliminary-review jurisdiction in that state. The state statute would still, however, be subject to review by the Constitutional Court on application by interested parties.

    The new Constitutional Court would not replace the existing court system. It would not, for example, award money judgments or issue injunctions—both of which could dilute or impair its impartial functioning as a guardian of liberty. Its sole task would be to perform the preliminary reviews mentioned above and reviews on petitions by private citizens, groups, companies and governmental entities. Its sole power in such reviews would be either to uphold challenged laws or to suspend their effectiveness, in whole or in part, when they do not meet the requirements of strict scrutiny. Nonetheless, the Constitutional Court's decisions would have the force of law. (Congress, in creating the court, would stipulate that the final effectiveness of its legislation depends on it.) As part of the Constitutional Court's review process, generous allowance for amicus curiae briefs should be the norm.

    Congress should further strengthen these reviews and protect liberty by also creating an Office of Liberty Advocates to represent the side of liberty in the Constitutional Court.

    Common objections to court review of legislative decisions: There are two common objections to intensive “judicial review” in which courts strike down laws made by legislatures: First, courts lack access to the extensive factfinding capabilities that legislatures have at their disposal, so courts are systematically less able to make informed legislative judgments. Second, legislatures are instrinsically more “democratic,” both in the methods of their selection and in their mode of operation, allowing them to better reflect the preferences and values of the people. Both of these points are made in justifying the Supreme Court’s so-called rational basis test, which gives a green light to all manner of legislative excess.

    However, neither of these objections should apply to the proposed Constitutional Court. As for factfinding, the Constitutional Court should have available to it exactly the same materials that the legislature had before it, including Liberty Impact Statements, so the Constitutional Court would be at no disadvantage in that regard. As for being less “democratic,” there is no question that the Constitutional Court would be less responsive than a legislature to “the people’s” calls to crack down on other people's freedoms. That is, indeed, the very reason for its existence. The whole point of the Constitutional Court and its strict scrutiny standard is to assure that our laws place a higher priority on liberty than on needless curtailments of freedom that are imposed just because some people (or even most) want to see them inflicted on others. Perhaps there are places where human freedom is rightly placed at the mercy of popular sentiment, but not in the “land of the free.”

    What about the U.S. Supreme Court? The Supreme Court abdicated its position as the constitutional court for the defense of liberty when, in the 1930s, it adopted its highly deferential approach to judicial review (holding, for example, that a statute is valid “if any state of facts reasonably can be conceived that would sustain" it. Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934)). The overall level of liberty in the United States has declined steadily ever since. Without a doubt, one reason for this decline is that, since the 1930s, the Supreme Court applies the three above requirements only in cases of fundamental rights, and it does not regard basic human liberty as a "fundamental" right.

    Even with the Constitutional Court, the existing Supreme Court would continue, of course, and it would presumably continue to apply its deferential standard of judicial review that has made the Constitutional Court necessary.

    What you can do?
  • Ask candidates if they would require Liberty Impact Statements
  • Ask candidates if they would favor a Constitutional Court
  • Vote only for candidates who would demand Liberty Impact Statements and a Constitutional Court
  • Write to newspapers and blogs in support of Liberty Impact Statements and a Constitutional Court

    More laws = Less liberty
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    Rational Basis Test: The "rational basis test" allows any law to curtail freedom as long as “any state of facts reasonably can be conceived that would sustain" it. Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934). For more on the rational basis test, see How the Supreme Court Wrote ‘Liberty’ Out of the Constitution.
        For recent Supreme Court discussions of the rational basis test and the Court's reasons for taking such a cramped view of the Constitution's guarantee of liberty, see the opinions of various members of the Court in the two recent Second Amendment cases, McDonald v. Chicago, ___ S.Ct. ___ (2010) & District of Columbia v. Heller, 128 U.S. 2783 (2008). The dissenting opinions of Justices Stevens and Breyer in McDonald are especially illuminating, as these justices tried mightily to make the case again protecting liberty in the gun control context. Return