Anyone who doubts the radicalism of current conservative legal theory need look no further than the concurring opinion offered by D.C. Circuit judges David Sentelle and Janice Rogers Brown last week in Hettinga v. United States.

The case involves two dairies owned and operated by Hein and Ellen Hettinga. For years, the Hettingas were the beneficiaries of an exemption to federal regulations that allowed them to sell milk for less than regulated dairies. In 2006, the USDA issued a new rule changing that exemption. The Hettingas sued the USDA, but before their case could be heard, Congress passed and President Bush signed the Milk Regulatory Equity Act. That law codified the new USDA rule in statutory form. The Hettingas then sued to challenge the MREA, arguing that because theirs were the only newly-regulated dairies, the statute was a Bill of Attainder and violated Article I, Section 9 of the Constitution. They also claimed Congress violated their Due Process rights by passing the new law while their lawsuit against the USDA rule was pending.

The trial court held that the MREA was not a Bill of Attainder because other dairies might at some point be covered by the new rule, and that the Hettingas did not meet the threshold pleading requirements for a Due Process claim. The trial court dismissed their lawsuit the D.C. Circuit Court of Appeals affirmed the trial court’s dismissal in a per curiam opinion. (A per curiam opinion is unsigned and speaks for the entire panel hearing an appellate case.) As Judges Sentelle and Brown begin in their separate, concurring opinion: “Given the long-standing precedents in this area no other result is possible.”

But then Judges Sentelle and Brown launch into a blistering criticism of those “long-standing precedents” that harkens back to the days of Lochner v. New York, a case the Supreme Court decided on this date in 1905. They write:

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

The two judges reject New Deal-era cases that established the framework for economic regulation, citing the Federalist Papers, James Madison’s Notes of Debates in the Federal Convention of 1787, Washington Post articles, Randy Barnett’s Restoring the Lost Constitution: The Presumption of Liberty, an Iowa Law Review article, H.L. Mencken’s On Politics: A Carnival of Buncombe, and Anthony De Jasay’s The State.

What they don’t cite is any specific provision of the U.S. Constitution … because nothing in the Constitution supports their claim that ‘economic liberty’ should be “a fundamental constitutional right.”

That may seem like an innocuous claim, but it is truly radical. In that view, property rights would stand on the same pedestal as freedom of speech or religion … exempt from regulation by majority rule unless a court finds a compelling government interest that cannot be served by any less intrusive means.

This goes beyond the ‘Tenthers’ who argue for a more limited scope of federal government. If the U.S. Supreme Court adopted the view advocated by Judges Sentelle and Brown, state and local government would also be barred from regulating the “fundamental rights” of property and contracts. In other words, every zoning board decision, workplace safety rule, minimum wage and overtime law – anything a property or business owner claims infringes on his “economic liberty” – would be presumed unconstitutional … unless the state or federal government can pass the same level of strict scrutiny applied in First Amendment cases.

Simply, Sentelle and Brown do not believe representative government by majority rule should apply to property or business regulation. They write:

But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money – either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.
The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions.

The hope of correction at the ballot box is purely illusory. In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” [citations omitted.]

They would let unelected judges review and overturn any state or federal laws regulating property or business, based not on any specific provision of the U.S. Constitution – indeed despite the Commerce and Taxing & Spending Clauses and long-standing precedent regarding states’ inherent police power – but based instead on their ideological duty to protect the wealthy from “pillage” by the rest of us.

The good news: this opinion is not law. The Hettingas didn’t raise this argument in their briefs and the D.C. Circuit could not have overturned Supreme Court precedent regardless. The bad news: this opinion shows how radical conservative legal theory has become … and why Americans can’t afford a President Mitt Romney appointing federal judges.