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⁴ The argument that the Framers intended to establish a constitutional system that implemented a system of checks and balances in order to make wealth transfers more difficult is not inconsistent with the more common argument that they established such a system in order to prevent tyranny. Checks and balances not only make direct tyranny by elected officials more difficult; they make indirect tyranny by interest groups more difficult as well. Ibid, at 493–95; Cass Sunstein, R., “Interest Groups in American Public Law,” Stanford Law Review, vol. 38, no. 1 (November 1985), pp. 29–87.CrossRefGoogle Scholar As Sunstein has observed, “the problem of faction has been a central concern of constitutional law and theory since the time of the American Revolution. Madison made control of factions the centerpiece of his proposed Constitution.” Ibid, at 29.

⁵ Since its inception, there has been controversy among constitutional lawyers about whether judicial review was a part of the original constitutional design. The ultimate answer to the question of whether U.S. federal judges possess the power to declare acts of Congress unconstitutional was not provided in the Constitution itself, but in Chief Justice John Marshall's landmark opinion in Marbury v. Madison, 1 Cranch 137 (U.S. 1803), where Justice Marshall declared that this power was not expressly provided in the Constitution because it was not considered necessary to do so, and that such power is an essential element of American constitutional law because it is inherent in the very concept of an independent judiciary.

Despite the uncertain provenance of the power of the judiciary to review the constitutionality of legislative enactments, it is absolutely clear that the Framers envisioned an independent judiciary as a safeguard against encroachments on the people's liberty by the legislature. Alexander Hamilton, the principal advocate for the constitutional establishment of an independent judiciary in The Federalist Papers, based his defense of this branch on its ability to control legislative excess, not through judicial review alone, but through the “firmness of the judicial magistracy” in its role as interpreter of statutes:

But it is not with a view to infractions of the Constitution alone that the independence of judges may be an essential safeguard against the effects of occasional ill humors in the society…. The firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in manner compelled, by the very motives of the injustice they mediate, to qualify their attempts.

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⁹ Ibid., p. 533.

¹⁰ The point, of course, is Adam Smith's. This particular rendition is found in McKenzie, R., “Introduction,” ed. R., McKenzie, Constitutional Economics: Containing the Economic Powers of Government, p. 4 (Lexington: Lexington Books, 1984), pp. 1–18.Google Scholar

¹¹ T. G. Moore, “Economic Analysis of Freedom,” p. 534.

¹² See Director, “Parity of the Market Place,” p. 102 (summarizing Meiklejohn's argument).

¹³ Ibid., p. 105, n. 6.

¹⁴ Ibid.

¹⁵ Ibid.

¹⁶ Mill, John Stuart, Utilitarianism, Liberty and Representative Government (New York: E. P. Dutton & Co., 1951).Google Scholar

¹⁷ Knight, Frank H., Freedom and Reform: Essays in Economics and Social Philosophy (New York: Harper & Brothers, 1947)Google Scholar, ch. 14.

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¹⁹ 198 U.S. 45 (1905).

²⁰ Ibid., p. 64.

²¹ McCloskey, R. G., The American Supreme Court (Chicago: University of Chicago Press, 1960), pp. 137–39.Google Scholar

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²⁴ Ibid.

²⁵ Ibid.

²⁶ Compare Muller v. Oregon, 208 U.S. 412 (1908) (upholding state legislation regulating the number of hours women could work) and Bunting v. Oregon, 243 U.S. 426 (1917) (limiting the work hours for men in certain industries) with Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating a federal law that excluded from interstate commerce products made by firms employing children under a certain age) and Tyson & Bro. v. Banton, 273 U.S. 418 (1927) (invalidating theater ticket sales regulation).

²⁷ Adair v. United States, 208 U.S. 161 (1908) (invalidating a federal law prohibiting antiunion “yellow dog” employment contracts as violations of substantive due process); Hammer v. Dagenhart.

²⁸ See, e.g., Schechter Poultry Corp. v. United States, 295 U.S. 495 (1934) (invalidating the National Industrial Recovery Act); United States v. Butler, 297 U.S. 1 (1936) (invalidating the Agricultural Adjustment Act); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating a federal law regulating price fixing and unfair trade practices, and setting minimum working conditions in the coal industry).

²⁹ Nowak, Rotunda, and Young, Constitutional Law, p. 403.

³⁰ 300 U.S. 379 (1937).

³¹ United States v. Darby, 312 U.S. 100 (1941) (upholding the Fair Labor Standards Act); NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937) (upholding the National Labor Relations Act); Wickard v. Filburn, 317 U.S. 111 (1942) (upholding a new Agricultural Adjustment Act).

³² 198 U.S. 45, pp. 68–72 (Harlan, J., dissenting).

³³ United States v. Carolene Products Co., 304 U.S. 144 (1938). In what has become the most famous footnote in constitutional law, in footnote four of the Carolene decision the Court declared:

There may be a 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….

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 scrutiny under the general prohibitions of the Fourteenth Amendments than are most other types of legislation….

Nor need we inquire… 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.

This footnote contains the most complete statement of the now well-known distinction in constitutional law between the treatment of general economic or business regulatory legislation, which will be given great deference by the courts; and both governmental restrictions on groups that the court believes have been the subject of systematic exclusion from the political process, as well as legislation that restricts what the court takes to be fundamental constitutional values. These latter sorts of governmental regulations, unlike general regulatory legislation, will be the subject of stricter judicial scrutiny.

³⁴ Tribe, Laurence H., American Constitutional Law (Mineola: The Foundation Press, 1988), p. 582.Google Scholar

³⁵ 372 U.S. 726 (1963).

³⁶ Ibid., pp. 731–32.

³⁷ 336 U.S. 106 (1949).

³⁸ Nowak, Rotunda, and Young, Constitutional Law, p. 408.

³⁹ Stigler, George, “The Theory of Economic Regulation,” Bell Journal of Economics, vol. 2, no. 1 (1971), pp. 3–21.Google Scholar

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⁴³ Ibid.

⁴⁴ A possible shortcoming of the Lochner-era Court's approach to legislation was that it did not take a particularly consistent approach to constitutional issues, and perhaps acted with too much restraint.

⁴⁵ Mashaw, Jerry, “Constitutional Deregulation: Notes Toward a Public, Public Law,” Tulane Law Review, vol. 54 (1980), pp. 849–75Google Scholar, at 868 (“the question [of] whether the legislative action has a public purpose is always one that the legislature purports to have decided affirmatively”).

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⁵³ Tribe, American Constitutional Law, pp. 678–79.

⁵⁴ Ibid.

⁵⁵ Ibid.

⁵⁶ Schenk v. United States, 249 U.S. 47, 51 (1919) (declaring that “the prohibition of laws abridging the freedom of speech is not confined to previous restraints”); Gitlow v. New York, 268 U.S. 652, 666 (1925) (“freedom of… the press [is] among the fundamental rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment”); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that a law requiring all children to attend public schools is inconsistent with the First Amendment protection of the free exercise of religion).

⁵⁷ Anderson, Gary M., Shughart, William F. II, and Tollison, Robert D., “On the Incentives of Judges to Enforce Legislative Wealth Transfers,” Journal of Law and Economics, vol. 32, no. 1 (April, 1988), pp. 215–28.CrossRefGoogle Scholar

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⁵⁹ Director, “Parity of the Market Place,” p. 104.

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