Selective Judicial Activism: Defending Carolene Products
18 Pages Posted: 4 Mar 2016
Date Written: March 2, 2016
This Essay, written for a symposium asking “Is the Rational Basis Test Unconstitutional?,” defends the bifurcated-scrutiny approach of Carolene Products and its famous footnote four. A growing cadre of conservative and libertarian scholars has called for increased scrutiny of legislation affecting economic rights. The Essay marshals four types of arguments to suggest that regulation of market activities should not be subject to the same, heightened, level of scrutiny as legislation affecting personal rights: moral arguments, constitutive arguments, consequentialist arguments, and arguments resting on the likelihood of illicit legislative motives.
Keywords: libertarian, heightened scrutiny, rational basis, judicial activism, economic regulation, Carolene Products, footnote four
Suggested Citation: Suggested Citation