ECONOMY

344 the protection of liberty, property, and equality
right and the offsetting government interest. Sometimes the balance is decided on a
case-by-case basis, and sometimes by category. As the number and complexity of the
cases increase, the number of feasible permutations rapidly grows as well.
Unfortunately, the Constitution is silent on the question of how to choose that allimportant
standard of review. Today, with an implicit nod to public choice theory,
the basic judicial approach rests on three elements. First, when the court has some
confidence in the legislative or administrative processes, it is likely to defer to their
judgements. Second, when the court thinks that certain classes of claimants, namely
those individuals who are found in “discrete and insular” minorities, are unable to
protect their interests within the political process, then these persons will receive
greater protection than others whose access to that process is regarded as sufficient to
defend their interests (see Carolene Products Co. v. United States 1938, 152 n. 4). Third,
those constitutional rights that are regarded as essential to maintaining an open
and democratic political process will in general receive greater protection than those
which are not. Now, what remains to be determined is how this framework applies to
various substantive areas. The appropriate line of division is as follows. We first look
at areas involving political issues, which contain large pockets of “preferred freedoms”
(e.g. speech) or “suspect classifications” (e.g. race) that attract higher standards of
review. We then look to the economic and property interests that, subject to some key
exceptions, are subject to lower, often rational basis review. A central defect of modern
law is that it uses a lower standard of review in dealing with economic liberties and
property rights, notwithstanding the omnipresent dangers of faction discussed above.
Accordingly, this chapter will trace the pattern of judicial review as it applies first to
political, social, and moral issues, and then move on to the parallel discussions for
matters of economic liberty and private property. Its central theme is not that the
standard of review is too high in the former cases, but that it is too low in the latter,
noting the anomalies that arise along the way.
1 Political,Social, and Moral Issues
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Freedom of speech. The court has offered strong protection of freedom of speech,
especially on controversial political issues. The initial struggle over this principle
was tested by various political protest movements that were subject to criminal
prosecution for being a grave threat to public order and safety, by inciting violence
in the form of riots or civil disobedience. One such successful prosecution in the
aftermath of the First World War gave rise to Justice Holmes’s stirring dissent in
Abrams v. United States (1919, 624). The Court upheld a twenty-year prison term
for Russian anarchist leafleteers. Holmes insisted that the state show a clear and
imminent danger of harm before punishing speech, a position that became American
law during the Vietnam conflict in Brandenburg v. Ohio (1969). Rules on conspiracy
and aiding and abetting the commission of specific offenses involving treason,