What Louisiana does, and all states do in conferring favors through regulations that violate individuals’ rights, is obviously unjust and would be declared unconstitutional if courts would do their duty. Their duty is to protect individual liberty, including the right to earn a living, against special-interest legislation. Instead, since judicial abdication became normal during the New Deal, courts almost invariably defer to legislatures’ economic regulations, which frequently are rent-seeking by private factions.
Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for a regulation — even if the legislature never articulated it. Never mind the absurdity of the fiction that a majority of Louisianans know about, let alone care about, licensing flower arrangers.
Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.
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