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September 2013

Economic Liberty and the Second-Order Rational Basis Test

by Austin Raynor
99 Va. L. Rev. 1065 (2013)
Note

This Note proposes that certain constitutional economic liberty claims should be analyzed under a more stringent standard of scrutiny than they currently receive. In the industrializing period of the early twentieth century, the Supreme Court employed a rigorous mode of judicial review to invalidate a tapestry of regulations that arguably impinged on economic freedom. The case of Lochner v. New York, in which the Court voided a state law regulating maximum work hours, epitomizes this methodology. The New Deal, however, prompted judicial acquiescence to a revolutionary vision of legislative authority in the economic realm. The doctrinal sea change occurred in United States v. Carolene Products Co., where the Court, in response to the perceived judicial activism of the Lochner era, announced in its famous Footnote Four that it would henceforth abstain from micromanaging social and economic regulation. Footnote Four also reflected the Court’s intention to devote its future efforts primarily to safeguarding certain personal rights and defending vulnerable populations against invidious discrimination.

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