Taking the Con Out of Con. Law: The struggle over judicial interpretation.

Signs of crisis dominate the current landscape of constitutional law. Bush v. Gore may have chosen a president, but it left an open wound in the body politic. Prominent Democrats -- including Judge Abner Mikva -- have urged a senatorial moratorium on any Bush Supreme Court nominees until another presidential election removes his ostensible stain of illegitimacy. Worse still, major legal intellectuals like Michael McConnell languish in judicial-nomination limbo because of the newfound senatorial insistence on "mainstream" jurists for the federal courts. Harvard's Laurence Tribe has testified that conscientious Democratic senators should put ideological considerations front and center in deciding on Bush nominees.

Tribe's call for ideological candor brings into public view matters long shrouded in political darkness. Ideological purity, however, is a two-edged sword: Democrats, like Republicans, regard only their opponents' decisions as tainted by politics. Neither side can hope to make intellectual progress on its agenda without some neutral account of what the Constitution, properly construed, requires; but that elusive baseline depends as much on what is brought to the text as on what can be found in it.

Constitutional law asks judges to decide when Congress or the states have overstepped their authority, either by asserting powers that they don't have, or by violating entrenched individual rights. On these weighty matters, the initial inquiry is often the most decisive: What standard of review (or, as is sometimes said, scrutiny) should be brought to any government action? Scrutiny comes in three flavors. Virtually no statute survives strict scrutiny, whereby the state must show that it has adopted some narrowly tailored means to satisfy some compelling state interest. Conversely, virtually no government action flunks the "rational basis" test, which requires only that the government offer some ostensible rationale for its action. Only in cases of intermediate scrutiny, where state actions must be substantially related to some important governmental interest, is there a genuine contest.

But search as you may, the Constitution offers no textual guidance in sorting out which level of scrutiny applies where. The justices, both liberal and conservative, have to import that standard from without. Before the rise of the conservative justices -- Rehnquist, Scalia, and Thomas, with O'Connor and Kennedy often concurring -- the consensus view was that the rational-basis test would determine whether congressional legislation improperly regulated "commerce . . . among the several states." The upshot of this consensus was that Congress could set quotas for the wheat that farmers grew to feed their own livestock. Likewise, the rational-basis test allowed Hawaii to claim that it was for a "public use" that it forced a landlord to sell his interest to a tenant. The Court turned cartwheels to allow Congress to interfere with commerce, and to allow states to condemn land for any conceivable public purpose.

The exact opposite consensus held on freedom-of-speech issues. Restrictions on speech were generally judged under scrutiny so strict as to make even a libertarian blush. Members of the media, for example, are allowed to publish stolen information with impunity; public figures may bring defamation actions over false statements of fact only if the plaintiff can show that the defendant knew the statement to be false or acted in reckless disregard of the truth.

It is difficult, to say the least, to come up with any coherent constitutional theory that explains these violent differences in approach and outcome. Why should the government that acts with bad motives when it suppresses speech be thought to act with good motives when it extends its tentacles into ordinary business transactions? Viewed at its best, the modern "conservative" revolution attacks these inconsistencies with a single proposition: The free ride given to congressional and state legislation is over on matters of federalism and property rights; judicial scrutiny is ratcheted up to deny legislation on these matters an automatic judicial pass.

The Supreme Court confounded earlier expectations when it held in 1995 that Congress could not, under its commerce power, regulate the use of guns within 1,000 feet of a public school, and when it held in 2000 that Congress could not authorize a private federal right of action for a dormitory rape. (In both cases, however, Chief Justice Rehnquist went out of his way to affirm that Congress could continue, under the commerce power, to regulate the production and consumption of foodstuffs.) The Rehnquist Court has also held that the federal disability law does not apply to state governments; and it held that states did take property without compensation when they flatly prohibited a landowner from building anything at all on it.

Many critics see these decisions as a radical departure from prior law; it's easy to chortle that the former advocates of judicial restraint turned into constitutional tigers -- reversing decades of settled precedent -- once they seized the reins of power. But this criticism could equally be used against liberals who favor judicial activism for their own pet causes. What we need is a uniform theory. The First Amendment is not printed in bright red ink; nor are the commerce and takings clauses printed in faint beige. Both come from the same inkwell.

One could maintain, as I do not, the consistent position that Congress, and perhaps even state legislatures, should have well-nigh conclusive authority to determine whether their own actions meet the applicable constitutional standards. But so long as we share John Marshall's belief in judicial review, then little commends a jurisprudence that lets the fox tend the henhouse. Small cohesive political factions in some cases, and overweening majorities in others, pose a constant threat to human liberty. For both liberals and conservatives, the rational-basis test has to be the wrong approach to bring to any constitutional provision. It's simply inadequate as a way to protect our rights under the Constitution.

This is not to suggest that the justices must turn a blind eye to all the technical and political innovations since 1789. What they can do -- to borrow a felicitous word from Stanford's Lawrence Lessig -- is sensibly "translate" basic constitutional provisions without rewriting the constitutional text. Changed conditions since 1789 easily explain why Congress should be able to regulate interstate air travel or telecommunications across state lines; to prevent state blockades; and to limit state taxation of interstate business. But no translation justifies federal legislation on local gun use or neighborhood rape, when those activities are already illegal under the law of every state in the Union. Keeping Congress out of local matters is as important today as it was in 1789; it promotes freedom, by preserving for individuals the right to leave one state for another if the first state's government becomes excessively powerful. But this "exit" right, however useful, does not protect a landowner whose property rights are wiped out by state regulation; there is, therefore, good reason to defend the recent decisions that restored the teeth of the property guarantees in the Constitution.

A similar constitutional restoration is necessary in the area of freedom of speech -- specifically, with regard to the recent McCain- Feingold campaign-finance legislation. The key provisions of this Byzantine enactment forbid the national parties to use "soft" money from corporations, unions, and individuals, while allowing state and local parties to use up to $10,000 from any such source for certain specific activities. The limit on "hard money" contributions from individuals to particular candidates is raised from the previous $1,000 per person to $2,000; the cap can be raised further for candidates running against wealthy opponents who finance their own campaigns. All of these contributions are subject to an overall cap of $95,000 per donor for all candidates and parties during any given political election cycle. The act also -- most controversially -- makes it illegal for corporations and unions to pay for broadcast ads that refer to candidates for federal office within 60 days of a general election, or within 30 days of a primary. In contrast, hard money can be used to buy advertisements up to Election Day.

What should the justices do with this campaign-finance law? For starters, it would seem odd to engage in a strict construction of the phrase "freedom of speech" that would prohibit individuals from acting collectively for political action. No sensible interpretation of the phrase makes it permissible to speak oneself, but not to support the speech of others, by either capital or labor. So the constitutional guarantee of speech seems to be presumptively violated by the legislation.

The most obvious rejoinder is that sharp limitations on contributions to campaigns are necessary, in order to prevent the corruption that money brings to politics; the Supreme Court invoked precisely that rationale to sustain the limits on hard-money contributions in its 1976 Buckley v. Valeo decision. But under a strict-scrutiny standard, it is not enough to claim that political markets are subject to the same imperfections that allegedly infect the market for tomatoes or energy. It won't do to claim that rich candidates can "buy" elections, when open competition allows both major parties to tap the manifold sources of private wealth -- and when individuals, after all, are free to vote for underfinanced candidates. All of these protestations bespeak a loss of faith in the marketplace of ideas, which is the underpinning of the First Amendment.

Congress has to do better. It must show some particular pattern of abuse to which its regulations are specifically tailored. But how is that possible, when the federal and state statute books already contain countless prohibitions against the bribery of public officials or candidates, and against deliberate frauds in the conduct of a campaign? Ironically, for all its detailed restrictions, the current legislation completely misses the real source of our uneasiness about political power and political money: Our current system of government gives politicians at all levels too much power to regulate the lives of ordinary citizens and businesses. Because the limitations on federal power, and the protections for property rights at all levels, are very weak, politically savvy operators have something to buy for their money -- permits, licenses, and such. If the Supreme Court had done the sesensible thing and eliminated the rational-basis test across the board, politicians at all levels of government would have less to sell, and businesses, unions, and individuals would have less to buy. One cannot fix the deformities of our current constitutional system by turning political parties into regulated public utilities.

These issues have important ramifications for the pending struggles over senatorial confirmation of judicial nominees. What is needed -- by all sides -- is a consistent view of constitutional interpretation, one that understands that the Constitution is meant to prohibit as well as validate government actions. At present, far too many liberals embrace rational basis in some cases and strict scrutiny in others; on the other side, conservatives from President Bush on down intone the need for judges to engage in "strict construction" of the Constitution, without the foggiest idea of what that entails. No idle maxim can substitute for a hard rethinking of the constitutional issues.

Senators on both sides of the aisle should no longer be allowed to pretend that the chaotic waters of current constitutional doctrine flow within some magical judicial mainstream: The constitutional waters are surging helter-skelter in all directions. The present disrepair in constitutional theory is an occasion for senators to rethink their own dogmatic assumptions, and focus on the need for a faithful translation of the constitutional text. In areas -- such as freedom of speech -- in which the government will have a strong incentive to misbehave, the strict-scrutiny test should be applied; in other cases, such as those involving the reconciliation of property rights with environmental concerns, there should be an intermediate-scrutiny test; but in all cases, the rational-basis test should be scrapped, as a completely insufficient protection of our rights.

Legislators should undertake this rigorous process of constitutional translation. They might come to appreciate that judicial nominees, once confirmed, are doing their job when they clip the wings of the very senators who voted on their appointments.