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I would push back on the need for a "paradigm" because as much as lawyers like rules and predictability, the judicial process is ultimately a matter of judgment

I would push back on the need for a "paradigm" because as much as lawyers like rules and predictability, the judicial process is ultimately a matter of judgment. Discussion about the "factors" a court should consider is often just that, guidance to other courts about what may or may not be relevant. A decent phrasing of this that kind of puts it into a "paradigm" would be recent 2A cases suggesting courts should look to the "history and tradition." All that's really saying is to do your legal research and make a decision. As conflicts between reasonable judgments, that's the judicial process. The supreme court can allow circuit splits to exist, or they can express their own opinion. Of course, the Executive is free to make reasonable judgments within their realm. They're free to not prosecute questionable cases, and they're also free to prosecute defendants on cases where the court ultimately disagrees (that the conduct was legal).

twoodfin 2y ago
So that's clarifying, but I'm not sure how it's making an argument that "strict scrutiny" vs. "rational basis" isn't at the very least a good shorthand that captures the strongest available historical interpretation of the Court's varying powers of review.
- goodluckchuck 2y ago
  I don't understand what you mean by varying powers of review.
  - twoodfin 2y ago
    SCOTUS doesn’t get to tell Congress they’re making the wrong tradeoff on regulating the length of fishing vessels in the North Atlantic—assuming there’s any possible rational basis for such a law. They do get to tell Congress they’ve stepped over the line in regulating speech about vaccines on the Internet, at least without a rationale that survives a level of review commonly called “strict scrutiny”. I took your original post to be arguing this distinction wasn’t well founded in the text of the Constitution or historical understanding of it.
    - goodluckchuck 2y ago
      Yeah, you understand and you’re right that the current rules accurately describe the current prevailing wisdom, but that’s kind of tautological. Some of the weak spots are rational basis review being too deferential. Certainly a law is constitutional unless there is some claim to the contrary, but when it comes into conflict with individual rights, a judgment has to be made and that’s an inherently judicial task, not suited to deference. Another weak spot is the commerce clause, because it is certainly legitimate evaluate whether the law falls within Congress’s legislative authority. Anyone who reads the enumerated powers can tell “essentially anything” would have been a lot easier write… and yet the founders enumerated specific limited areas. It’s hard to predict exactly what they’ll say, but my best guess would be focusing more on this connection between the legislative authority and the means employed by the statute, balanced against the rights allegedly being impaired (without regard to whether those are fundamental / class based. If a law is squarely within legislative authority, then congress shouldn’t need a rational basis. Rather than saying it impairs a fundamental right, they could focus on the fact that regulation of speech is not strongly within the legislative authority. As a law ventures further from historical and transitional exercises, the basis for the law would have to get stronger. Honestly, this isn’t a major change, but erroneous New Deal Era caselaw has corrupted the logic. Sure, in theory everything could be called interstate commerce, but regulating viewpoint based speech is a has a stronger impact on speech than on commerce. Meanwhile, regulating the length of merchant vessels falls a lot closer to regulating seagoing commerce than to speech. No need to apply different standards.

twoodfin 2y ago

So that's clarifying, but I'm not sure how it's making an argument that "strict scrutiny" vs. "rational basis" isn't at the very least a good shorthand that captures the strongest available historical interpretation of the Court's varying powers of review.

goodluckchuck 2y ago
I don't understand what you mean by varying powers of review.
- twoodfin 2y ago
  SCOTUS doesn’t get to tell Congress they’re making the wrong tradeoff on regulating the length of fishing vessels in the North Atlantic—assuming there’s any possible rational basis for such a law. They do get to tell Congress they’ve stepped over the line in regulating speech about vaccines on the Internet, at least without a rationale that survives a level of review commonly called “strict scrutiny”. I took your original post to be arguing this distinction wasn’t well founded in the text of the Constitution or historical understanding of it.
  - goodluckchuck 2y ago
    Yeah, you understand and you’re right that the current rules accurately describe the current prevailing wisdom, but that’s kind of tautological. Some of the weak spots are rational basis review being too deferential. Certainly a law is constitutional unless there is some claim to the contrary, but when it comes into conflict with individual rights, a judgment has to be made and that’s an inherently judicial task, not suited to deference. Another weak spot is the commerce clause, because it is certainly legitimate evaluate whether the law falls within Congress’s legislative authority. Anyone who reads the enumerated powers can tell “essentially anything” would have been a lot easier write… and yet the founders enumerated specific limited areas. It’s hard to predict exactly what they’ll say, but my best guess would be focusing more on this connection between the legislative authority and the means employed by the statute, balanced against the rights allegedly being impaired (without regard to whether those are fundamental / class based. If a law is squarely within legislative authority, then congress shouldn’t need a rational basis. Rather than saying it impairs a fundamental right, they could focus on the fact that regulation of speech is not strongly within the legislative authority. As a law ventures further from historical and transitional exercises, the basis for the law would have to get stronger. Honestly, this isn’t a major change, but erroneous New Deal Era caselaw has corrupted the logic. Sure, in theory everything could be called interstate commerce, but regulating viewpoint based speech is a has a stronger impact on speech than on commerce. Meanwhile, regulating the length of merchant vessels falls a lot closer to regulating seagoing commerce than to speech. No need to apply different standards.