Two Federal Judges Suggest All Labor, Business or Wall Street Regulation Is Unconstitutional

For more than two years, ThinkProgress has tracked “tentherism,” a radical misreading of the Constitution which claims that pretty much everything the federal government does is unconstitutional. Tenther lawmakers — who include members of Congress, senators, governors and at least one sitting Supreme Court justice — have claimed that child labor laws, Social Security, Medicare, Medicaid, clean air laws and the federal highway system all violate the Constitution.

Even tentherism has a limit, however. While tenthers would all but eliminate our national leaders’ ability to solve national problems, they concede that state governments are still free to serve their citizens. Which is why a recent concurring opinion signed by U.S. Court of Appeals judges David Sentelle and Janice Rogers Brown is so disturbing. Under Sentelle and Brown’s vision, any attempt to protect workers, investors or consumers from unscrupulous businesses is in jeopardy:

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.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. . . . Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.

To translate this a bit, Sentelle and Brown disagree with the fact that representatives chosen by the American people, rather than unelected judges such as themselves, get to decide America’s economic policy. At best, their opinion calls for a return to a discredited era when judges could simply toss out laws protecting workers or consumers that the judges did not like.


Yet Sentelle and Brown also appear to be arguing for something even more radical than that. Their opinion complains that “economic liberty [is] not a fundamental constitutional right.” “Fundamental rights” are the very most protected rights under the Constitution. The right to be free from race discrimination is a fundamental right. As is the right to criticize the government. Sentelle and Brown’s opinion, however, concerns a law that removes a loophole exempting certain dairies from a 70 year-old system regulating the milk industry. In their apparent view, a law that regulates how dairy executives operate their business is exactly as offensive as a law that bans black people from voting.

Nor would their opinion stop there. The minimum wage regulates how dairy executives operate their business. As do child labor laws. Or workplace safety laws. Or laws that prevent dairies from selling spoiled or tainted milk. In Sentelle and Brown’s America, these laws likely would also be just as constitutionally suspect as a law that gives special rights to white people and not to black people.

Nor would their opinion stop there, for, indeed, their opinion laments that “economic legislation” as a whole is left to the people’s representatives and not to judges. The likely implication of Sentelle and Brown’s vision is any attempt to protect workers, or to regulate Wall Street, or to ensure that food and drugs sold in the marketplace are safe, or to enact any law protecting ordinary American consumers must be treated with exactly the same constitutional skepticism judges would bring to a law that tosses people who speak out against President Obama in jail.

Yet for all the many, many laws they would strike down, for all the anarchy they would create by sweeping away literally centuries of regulation in a single constitutional whirlwind, one thing is conspicuously absent from Sentelle and Brown’s opinion. At no point do they cite a single word of the Constitution which supports their sweeping assault on America’s power to govern itself.

This is not a coincidence. Those words do not exist.