“Comes A Horseman”

September 08, 2010 | By PACIFIC LEGAL FOUNDATION

Author: Timothy Sandefur

The latest issue of National Review (Sept. 20, 2010) includes my feature article, “Comes A Horseman,” about the pre-New Deal Supreme Court. Excerpt:

…it’s clear that, however dramatic, the era’s constitutional transformation was not unforeseen. Nor was it simply the pragmatic resolution of a political tussle between compassionate liberals and heartless conservatives. The Four Horsemen drew from a long line of precedent—some quite fresh—that correctly restrained government power and protected economic freedom in ways incompatible with Roosevelt’s plans. Moreover, their forebodings proved justified: The theories the Court embraced in 1937 sapped state autonomy, fostered a federal bureaucracy totally alien to the Founders’ vision, and abandoned individual liberty to the arbitrary will of legislatures. Today, government limits economic freedom in countless anti-competitive ways—requiring even florists and interior decorators to undergo years of expensive education and confiscating property virtually without restraint. Indeed, when the Court ruled in 2005 that states could condemn homes and give the land to private developers, it drew straight from the New Deal cases: Courts review eminent domain under a “deferential standard,” wrote Justice Anthony Kennedy, that “echoes the rational-basis test used to review economic regulation.”

Justice Sutherland and colleagues warned that, while ignoring or loosening constitutional limits might seem profitable in the short run, every lapse furnished a precedent for further expansion, and that the bureaucratic machinery created during the 1930s would eventually entangle every aspect of economic life. It’s sad their warnings went unheeded.