Introduction
Like many widows, Sandy Meadows faced economic uncertainty after her husband passed away.1 She, however, had a knack for arranging flowers and found a job in the floral department of her local Albertsons grocery store.2 Sandy excelled, earned a promotion, and effectively ran the entire department.3 But then the Louisiana Horticulture Commission came knocking.4 The Commission informed the store that it had to hire a licensed florist or shut down the department.5
Louisiana is the only state in the Union that imposes occupational licensing requirements on florists.6 Prior to reforms in 2024,7 getting licensed was no small task. Would-be florists were required to pass a notoriously difficult exam — fewer than fifty percent made the cut.8 Sandy failed this exam five times,9 but it wasn’t because her floral skills were lacking; her job performance was exemplary.10 She failed because currently licensed florists decided who passed and who failed.11 Fox, meet henhouse.
Sandy’s story doesn’t have a happy ending. When she couldn’t get a license, Albertsons fired her and replaced her with a licensed florist.12 She couldn’t afford a phone or car, and the power company eventually shut off the electricity to her home.13 Shortly thereafter, Sandy died in poverty, alone.14
Before her death, Sandy — along with a few other aspiring florists — challenged Louisiana’s licensing scheme15 with the help of attorney Clark Neily, who recounts Sandy’s story in his book Terms of Engagement.16 They lost, felled by a familiar foe in constitutional adjudication: rational basis review. No matter that the women had a constitutional right to pursue their chosen profession17 or that even a Supreme Court Justice has recognized that rational basis review is “tantamount to no review at all.”18 Because Louisiana presented conceivable justifications for its licensing scheme,19 the court upheld the regulations.20 And Sandy’s livelihood vanished.
Rational basis review wasn’t always this farcical. For about twenty years, between the Court’s decisions in United States v. Carolene Products Co.21 — which established rational basis review22 — and Williamson v. Lee Optical of Oklahoma, Inc.23 — which redefined rational basis review as a hyper-deferential standard24 — the courts applied a meaningful means-end scrutiny to restrictions on economic activity that gave legislatures wide latitude to exercise their police power while protecting a baseline level of economic liberty. (This Note refers to that time period as the Carolene Products era.) That blend of interrogation and deference was the right approach. Many scholars have called on courts to give economic rights their due;25 this Note offers a proven mechanism for doing so: reviving the Carolene Products–era approach to rational basis review.
This Note proceeds in four parts. Part I discusses the evolution of rational basis review. Part II excavates the history of meaningful rational basis review in the lower courts during the Carolene Products era and distills the doctrine’s essence. Part III argues that Carolene Products–era rational basis review appropriately balanced individuals’ constitutional rights and states’ police power. And Part IV applies meaningful rational basis review to Sandy Meadows’s case to show how courts could implement this form of review today.
I. The Rational Basis Review Story
Rational basis review emerged as a doctrinal framework in the 1930s. Over the prior quarter century — the Lochner26 era — the Court had aggressively scrutinized economic regulations under the Due Process Clauses of the Fifth and Fourteenth Amendments, invalidating Progressive Era reforms that aimed to sand the rough edges of late-nineteenth-century capitalism.27 But beginning in 1931, the Court backed off. That year, in O’Gorman & Young, Inc. v. Hartford Fire Insurance Co.,28 the Court held that an insurance regulation enjoyed a “presumption of constitutionality.”29 O’Gorman & Young signaled a retreat from Lochnerian activism — in the words of Professor Walton Hamilton, the decision “reverse[d] the rules of presumption and proof in cases involving the control of industry.”30
Seven years later, in Carolene Products, the Court took O’Gorman & Young’s presumption of constitutionality to its logical conclusion. Carolene Products established that regulations of all “ordinary commercial transactions” were presumptively valid and would be reviewed under the rational basis test.31 Although parties could still attack an economic regulation as irrational, they would have to prove its unreasonableness with facts.32 Legislation got the benefit of the doubt.33
The Court’s 1955 decision in Lee Optical turbocharged judicial deference under rational basis review. Lee Optical shared Carolene Products’s philosophical underpinnings,34 but its application of the rational basis test charted new territory. The case involved an Oklahoma law that prohibited opticians from fitting glasses or replacing lenses without a prescription from an optometrist or ophthalmologist.35 The law effectively prevented opticians from performing work they were perfectly capable of doing, serving little purpose beyond shielding optometrists and ophthalmologists from competition.36 Nevertheless, the Court unanimously upheld the statute.37 In doing so, it articulated what remains the core of rational basis review: A law will be upheld if “there is an evil at hand for correction, and . . . it might be thought that the particular legislative measure [is] a rational way to correct it.”38
“Might be thought” are the operative words. On its face, this phrasing isn’t far off from Carolene Products’s instruction that “where the legislative judgment is drawn in question,” a court’s inquiry “must be restricted to the issue whether any state of facts either known or which could reasonably be assumed” supports the legislature’s determination.39 But in practice, the two approaches diverge. In Carolene Products, the Court emphasized that “[w]here the existence of a rational basis” hinged upon certain facts, a court could properly inquire into those facts.40 And a statute grounded in certain facts could be assailed “by showing to the court that those facts have ceased to exist.”41 Not so in Lee Optical, where the Court’s analysis was divorced from facts on the ground. The Court went so far as to hypothesize potential justifications for the law that the state hadn’t advanced, suggesting the legislature might have concluded that updated prescriptions were needed often enough to justify the regulation.42 As Professors Randy Barnett and Evan Bernick have noted, Lee Optical marked a shift from a “realistic evidence-based inquiry” to a “formalist hypothetical inquiry.”43 And in this world of “‘conceivable’ basis review,”44 the government nearly always wins.45
In the seventy years since Lee Optical, the Court has consistently embraced this neutered form of rational basis review. In FCC v. Beach Communications, Inc.,46 for example, the Court reaffirmed that under rational basis review, “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it,’”47 and that “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”48 Under this doctrine, challenges to economic regulations are effectively dead on arrival.49
In reviewing economic regulations, the Supreme Court has swerved from intervention to deference. But those aren’t the only options. This Note’s next Part details a third approach — articulated by the Supreme Court in Carolene Products and fleshed out through lower court decisions — that protects constitutional rights while recognizing that policy decisions are the sole province of the political branches.
II. Carolene Products–Era Rational Basis Review
Rational basis review during the Carolene Products era involved two steps. First, courts determined whether an economic regulation’s ends were legitimate objects of the police power. Class legislation was impermissible, although courts allowed legislation that incidentally benefited a specific group. If the ends were proper, courts applied a forgiving — but not toothless — form of means-end scrutiny. This analysis started from a presumption of validity and required a reasonable — but not perfect — fit between means and ends.
A. The Police Power’s Boundaries
During the Carolene Products era, courts meaningfully policed the boundaries of states’ police power. As one Michigan Supreme Court justice put it: “Business practices which have no detrimental effect on public health, morals, safety and public welfare may not be prohibited by the legislative body, for such prohibition would result in the deprivation of liberty and property without due process of law.”50 Most often, a law was held germane to the public welfare — even legislatures acting pretextually seemed to know they needed a police-power hook.51 Every once in a while, however, courts declared a regulation’s rationale beyond the scope of the police power. For example, a federal court in California determined that the state could not leverage the police power to protect “aesthetic or sentimental considerations.”52 But these cases were few and far between.
A few types of regulations unequivocally fell within the scope of the police power. First were laws promoting public health, including statutes aimed at nutrition and sanitation.53 This category is not surprising — after all, “public health” is one of the police-power buckets that has been recognized since the early days of the Republic.54 Second were laws aiming to protect consumers, particularly by preventing fraud.55 Especially when the health rationale for a law was dubious — as in the case of filled milk prohibitions — courts often looked to the risk of fraud as a backstop.56 Third were laws designed to mitigate environmental harms, particularly those caused by industrial mining or dredging.57 Of course, regulations in these categories did not always survive rational basis review — they still had to be appropriately tailored.58 But they invariably satisfied the first requirement that the object of regulation be germane to the police power.
On the other hand, courts consistently deemed one type of law beyond the police power: class legislation. Courts have long suggested that class legislation — “a law that takes property from A. and gives it to B.”59 — violates due process.60 Early in the Republic, Justice Chase condemned the practice in Calder v. Bull.61 Opposition to class legislation became particularly pronounced during the Lochner era, animated by concerns that Progressive Era economic legislation transferred wealth from capital to labor.62
During the Carolene Products era, courts didn’t shed their aversion to class legislation. For example, in holding that minimum prices for barber services violated due process, the Oregon Supreme Court determined that the legislation did not “hav[e] a well-recognized and direct bearing upon the health, happiness, and well-being of the public as a whole,” but instead was “a price fixing statute of primary interest to the barber trade itself.”63 In a similar vein, the lower court in Lee Optical found that the optometry law “divert[ed] from the optician a very substantial, as well as profitable, part of his business” and gave it to optometrists and ophthalmologists.64 Legislation that served only parochial interests could never satisfy rational basis review.
Carolene Products–era courts, however, would uphold laws that incidentally benefited discrete groups but bore a rational relationship to the public health, safety, or morals. In this sense, the prohibition on class legislation was softer than during the Lochner era. The district court in Lee Optical, for example, observed that a “statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good.”65 Put differently, if legislation could objectively survive means-end scrutiny, it would not be invalidated on class-legislation grounds.
Two cases from the early 1950s illustrate how Carolene Products–era courts approached questions of whether a regulation was impermissible class legislation. First, in State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, Inc.,66 the Supreme Court of California held that setting price schedules for dry cleaning services violated due process.67 The court acknowledged that “legislation which aims to protect [the] general welfare through an initial protection of an industry is within the scope of the police power,” but concluded that fixing prices for dry cleaning served to protect the interests of only “a small segment of the general public.”68 Since the court was unable to find a reasonable connection between price fixing and a legitimate object of the police power — it evidently did not find persuasive the argument that higher prices promoted sanitation69 — it concluded the law impermissibly benefited dry cleaners at the expense of the general public.70 And that was the exact opposite of a proper exercise of the police power, which promoted the interests of the public as a whole.
Second, in Reingold v. Harper,71 the Supreme Court of New Jersey upheld the state’s prohibition on self-service gasoline stations against a due process challenge.72 The court addressed concerns about class legislation, asserting that the police power “is not invocable for the economic protection alone of particular individuals or groups of individuals.”73 But after reviewing testimony from the legislative hearings leading to the law’s enactment, the court concluded that plausible safety concerns underpinned the ban on self-service gas.74 Given gasoline’s flammability, the legislature could act to prevent the negligent operation of gas pumps, including by requiring that gas station attendants fill drivers’ tanks.75 The fact that the law benefited gas station operators — who lobbied for the bill — by preventing competition from cheaper self-service stations did not vitiate the legislature’s public safety concerns.76
B. Meaningful Means-End Analysis
If a law’s ends were within the police power’s legitimate sweep, courts applied a robust yet deferential form of means-end scrutiny. This analysis began with a presumption of validity, and although litigants could rebut that presumption, courts did not require an exact fit between means and ends. Instead, reasonableness was the touchstone.
1. Rebuttable Presumption of Validity. — In a significant departure from the Lochner era, Carolene Products–era courts assumed legislatures selected valid means to achieve their policy ends. This principle derived from Carolene Products itself, in which the Supreme Court announced that “the existence of facts supporting the legislative judgment is to be presumed.”77 Lower courts obeyed this directive. For example, the South Carolina Supreme Court chastised plaintiffs challenging the constitutionality of a tax act for “ignor[ing] the presumption of accuracy of the legislative findings” and emphasized that “[t]he burden does not rest upon [the state] to prove the presumed.”78 Likewise, the District Court for the District of Columbia observed that “[l]egislative acts, when subjected to judicial scrutiny, must be presumed to rest on a rational basis.”79 A California federal court put it most succinctly: “Every legislative enactment is rightly presumed to be constitutional.”80 Other courts made similar proclamations.81
The presumption of legislative validity, however, was always rebuttable, in contrast to modern rational basis review.82 Even courts that upheld regulations made sure to note that plaintiffs had the opportunity to disprove a law’s rational basis. When a Florida federal court allowed a state board to set minimum prices for dry cleaning, for example, it emphasized that although legislative findings receive deference, they are “not conclusive.”83 Citing Carolene Products, the court stated that the constitutionality of a statute may always be challenged by disproving its factual underpinnings.84 These assertions were not empty words — on numerous occasions, courts invalidated economic regulations for lacking a rational basis.85 For example, the district court in Lee Optical held that Oklahoma’s restrictions on opticians did not “bear ‘a real and substantial relation’” to improving Oklahomans’ vision and therefore violated due process.86 When parties challenging economic regulations presented compelling evidence, courts were willing to declare the regulations unconstitutional.
The presumption of validity was particularly relevant in cases of factual ambiguity. Legislatures frequently regulate in areas of uncertainty and in response to new concerns;87 in these cases, it may be impossible for states to prove that their selected means will yield their desired ends.88 So Carolene Products–era courts deferred to legislative factual determinations as long as the facts were “fairly debatable.”89 The controversy over filled milk bans highlighted this strand of judicial deference. On the one hand, some health experts viewed vegetable oil, a key filled milk additive, as an inadequate alternative to milk fat.90 Filled milk, accordingly, could never take the place of regular milk in a healthy diet. Others viewed filled milk as a nutritious product — after all, it was the combination of skim milk and vegetable oil, two products considered (at the time) to be healthy.91 In the face of this scientific disagreement, courts generally allowed legislatures to decide which argument they found more persuasive.92 It was proper for the people’s elected officials, not the courts, to muddle through factual ambiguities.93
2. Assessing the Means. — To determine whether a party had successfully rebutted the presumption of validity, courts scrutinized the relationship between means and ends. Rational basis review did not require a perfect fit — courts accepted that some harmful products would escape regulation and some innocent goods would face exclusion from the market.94 As a California federal court said: “Reasonableness [was] the test of police power, not scientific precision.”95 Courts used a medley of phrases to describe this means-end inquiry. Some required the means to be “reasonably necessary” to achieving the state’s objective;96 others said “the means [must] be reasonable and appropriate”97 or must have a “reasonable relationship to the end sought.”98 Some courts framed the inquiry in the negative, prohibiting measures that were “clearly unreasonable”99 or that banned “unnecessary and unreasonable restrictions upon lawful occupations.”100 Regardless of the exact phrasing, reasonableness was the touchstone.
To assess whether the means of a regulation were reasonable, courts would look at each justification for the statute and determine if actual — not hypothetical — facts suggested a connection between the justification and the regulation’s means.101 As discussed above, courts presumed that such facts existed,102 and the party challenging a regulation bore the burden of producing evidence that convinced the court otherwise.103 If a regulation’s means supported any of its ends, the court would generally uphold the law as a valid exercise of the police power.104 Alternative means of achieving the same ends were also a relevant consideration — if a given end could be more easily achieved by substantially less restrictive means, the chosen means were more likely to be arbitrary and unreasonable.105
Merced Dredging Co. v. Merced County,106 in which a California federal court considered a county ordinance requiring surface-mining operations to replace the soil they removed,107 illustrate how this means-end analysis operated in practice. Merced County offered several justifications for its ordinance, none of which satisfied judicial scrutiny.
One of the county’s justifications failed at the first step of the means-ends inquiry: The ends were illegitimate. Merced argued that the ordinance was necessary to protect the county’s “historic lore” and “scenic attraction[s].”108 But the county could not marshal the police power to protect these purely “aesthetic or sentimental considerations.”109 Scenic beauty was not an excuse to curtail economic rights.
The county’s four other justifications were legitimate objects of the police power, but the means lacked a reasonable relationship to the ends. In three cases, the county essentially selected the wrong means. First, Merced claimed that water pooling in mined areas provided a breeding ground for mosquitoes and increased the risk of malaria transmission.110 Two pieces of evidence undermined this argument: An affidavit from the Field Superintendent of the Merced Mosquito Abatement District stated that the type of mosquito that carried malaria “never breeds in stagnant or foul water.”111 Merced also had instituted a mosquito abatement policy that included the mining company’s land — efforts already were underway to prevent mosquito proliferation.112 Because resoiling “would seem to be a decidedly arbitrary means of accomplishing ineffectively what could be effectively accomplished by” other means, it was an unreasonable method of mitigating malaria risk.113
The county next argued that preventing water pollution justified the ordinance.114 But resoiling — which involved dumping allegedly contaminated soil back into the place where pollution could seep into the water supply — would likely aggravate, rather than abate, water pollution.115 The state, moreover, already had laws on the books that addressed commercial pollution, rendering the ordinance unnecessary.116
Third, Merced claimed that leaving mounds of dirt and rock could create a public nuisance.117 Like with water pollution, however, California maintained laws that required the mining company to abate any nuisances.118
Merced’s final argument was a closer call. The county contended that preventing the destruction of “rich agricultural lands” justified the resoiling requirement.119 Preserving agricultural fertility was a legitimate object of the police power,120 and a resoiling requirement — in the right circumstances — could be a constitutionally permissible means to achieve that end.121 But although Merced’s means weren’t wrong in kind, they were excessive as a matter of degree. The ordinance’s “absolute mandate” that dredgers leave the land precisely as level as before mining began “greatly exceed[ed] the necessities of the situation” because a requirement that the surface be left “as level as reasonably possible would” preserve soil fertility.122 Likewise, the ordinance’s requirement that dredgers leave no more than five acres unleveled at any given time was excessive; soil preservation could be achieved “by plaintiff’s resoiling . . . at any rate that best suits the circumstances of plaintiff’s operations.”123 The court’s analysis showed that means couldn’t just bear any relationship to a law’s ends; the link between means and ends had to be reasonable based on the “relevant facts.”124
Merced Dredging Co. exemplified the deferential, but not toothless, means-end scrutiny that courts applied during the Carolene Products era. It required regulations to operate within the police power. It looked at actual facts offered by the parties to determine if a reasonable relationship existed between the regulatory aims and the means employed. It assessed obvious alternative means of achieving the legislature’s objectives. And although it gave the legislature broad latitude to govern, it struck down arbitrary laws.
In sum, during the Carolene Products era, courts applied deferential yet toothy scrutiny to economic regulations. Statutes enjoyed a presumption of validity, legislators had discretion to make sense of uncertainty, and laws didn’t rise to the level of class legislation just because they incidentally benefitted certain groups. At the same time, naked class legislation violated due process, legislative means had to reasonably fit ends, and courts policed the police power’s boundaries. In other words, the Constitution’s due process guarantees protected litigants who could prove the legislature genuinely exceeded its authority.
III. The Right Balance
Economic liberty is entitled to constitutional protection, but it’s also subject to reasonable regulation. Carolene Products–era review recognized this and struck the right balance between liberty and regulation.125 The same cannot be said for either Lochner’s interventionism or Lee Optical’s extreme deference.
A. A Tradition of Liberty
The Constitution guarantees a measure of economic liberty.126 “Economic liberty” is an amorphous term, but Barnett provides a good working definition: “[T]he right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing.”127 This right was recognized at common law,128 and the Framers viewed “the rights to acquire, possess, and protect property” as “natural, inherent, and inalienable.”129
Economic liberty retained its exalted position at the time of the Civil War Amendments. The idea of “free labor” coursed through abolitionist thought130 and was a “unifying purpose” of the Reconstruction Amendments.131 The Civil Rights Act of 1866 emphasized contractual and property rights, indicating that those economic liberties were “[a]t the very core of civil rights” during Reconstruction.132 Thoroughly canvassing the historical record,133 Professor Stephen Williams shows the drafters of the Civil Rights Act were particularly concerned about laws in southern states that subjected newly emancipated Black people to de facto forced labor.134 To combat this system, Congress aimed to bolster the “right to make a contract to secure the privilege and rewards of labor.”135 And both proponents and critics of the Fourteenth Amendment agreed the measure was passed in large part to safeguard the Civil Rights Act against both constitutional challenges and revision by future Congresses.136 In light of this historical record, it’s clear that a primary purpose of the amendment was “the protection of occupational liberty” that was so central to the Reconstruction Congress’s handiwork.137
Even in the modern era, when economic liberty receives scant protection, the Court has recognized constitutional protections for economic rights.138 Justice Douglas, the author of Lee Optical, recognized that “[t]he right to work . . . [is] the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property.”139 Modern courts may not rigorously scrutinize restrictions on occupational freedom, but they at least sometimes rhetorically carry the torch of the Fourteenth Amendment’s Framers.
Beyond its historical pedigree, there are theoretical and practical reasons to favor more searching review of economic regulations. By applying modern rational basis review to restrictions on economic liberty, the judiciary abdicates its responsibility to enforce the Constitution. On a theoretical level, this erodes the rule of law. Professor Tara Smith, for example, argues that rational basis review “allow[s] government actions that might be in the neighborhood of the Constitution’s boundaries, but are not within its limits,” which “exchanges the rule of law for the rule of ‘close enough.’”140
Perhaps more important than theoretical concerns, this judicial abdication inflicts real harm on real people. Recall Sandy Meadows. The court’s decision to apply rational basis review allowed the state to enact what amounted to class legislation,141 undermining her constitutional right (at least as originally conceived) to pursue a lawful calling.142 The human consequences were disastrous.143 And laws like Louisiana’s don’t only cheapen individual rights — they also transfer wealth upward. The state’s florist-licensing scheme enriched established market participants at the expense of people like Sandy, who have limited opportunities to find rewarding, good-paying jobs.144 In an era of high inequality and stagnant mobility,145 the state shouldn’t line the pockets of established interests on the backs of people like Sandy.
B. A Tradition of Deference
At the same time, the Fourteenth Amendment’s history supports judicial deference. Although the Fourteenth Amendment shifted power from the states to the federal government, observers at the time of enactment didn’t appear to read the amendment as a broad abrogation of states’ police power. Arguing in favor of state authority, Professor Raoul Berger highlights that even the North “was apprehensive of undue interference with the States’ right to order their own internal affairs.”146 And when critics of the amendment fretted that it would strip states of regulatory power, proponents pushed back strongly, arguing that the proposal wouldn’t “destroy the sovereignty of a State.”147 Legislators distinguished “between a right itself and the regulation of the right”148 and viewed the Fourteenth Amendment as entirely consistent with the principle that a state could regulate the conduct of its citizens, so long as its regulation was “reasonabl[e].”149
Early judicial application of the Fourteenth Amendment bolsters this view. In Davidson v. New Orleans,150 the Supreme Court took up the issue of whether a property assessment to fund drainage projects in New Orleans violated the property owners’ due process rights.151 The Court determined it did not.152 On the way to that conclusion, Justice Miller, writing for the majority, expressed concern that a “strange misconception of the scope of” the Due Process Clause had developed.153 The provision, he wrote, was:
looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.154
The Court didn’t see the Due Process Clause as a sword with which to disembowel the police power. In historian Professor William Nelson’s view, by “avoid[ing] extreme positions and usually deferr[ing] to legislative judgments” in cases like Davidson, “the late nineteenth-century Court” remained “[f]aithful to the compromises that had taken place during the framing and ratification of the [Fourteenth A]mendment.”155
Beyond its historical basis, deference yields practical benefits. Even strident libertarians would agree that society profits from some measure of regulation in service of the public welfare.156 Before Progressive Era reforms, for example, working and living conditions weren’t pretty — children filled urban factories, workplace hazards killed people on the job, and overcrowded slums bred disease.157 In response, legislators sought to enact regulations that would provide the public with “unadulterated food, safer workplaces, decent housing, and fair business practices.”158 Those are good things, and society benefits when the government has the latitude to pursue them.
C. Blending Liberty and Deference
Carolene Products rational basis review fits comfortably within a judicial tradition that protects economic rights while deferring to legislatures. The same cannot be said for Lochner’s activism159 or Lee Optical’s abdication.
Consider first Carolene Products review’s soft prohibition on class legislation. During the Carolene Products era, pure class legislation remained beyond the scope of the police power. But legislation in service of legitimate ends that incidentally benefited specific groups survived judicial review. Lochner, by contrast, applied a much more aggressive prohibition on A to B legislation, striking down the hours-limitation statute in part because “many of the laws of [its] character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives.”160 In the Court’s view, the law “was simple class warfare.”161 The Lochner Court transformed the idea of class legislation into a broad obstacle to economic regulation,162 something quite different from its original narrow prohibition on confiscatory legislation.163 Lee Optical and its progeny erred in the other direction. Courts applying Lee Optical rational basis review have concluded that even “intrastate economic protectionism” — in other words, protecting industry A to the economic detriment of industry B — “constitutes a legitimate state interest.”164 This view would have been utterly foreign to the framers of the Fourteenth Amendment, who were steeped in a legal culture that understood A to B legislation as an illegitimate exercise of state power.165
Next, take the presumption of validity. By requiring plaintiffs to demonstrate the lack of a rational connection between the statutory means and ends, Carolene Products respected legislative determinations. Lee Optical, for its part, took this principle too far — the Court turned a rebuttable presumption into an effectively irrebuttable one.166 And on the other end of the spectrum, Lochner — deeply skeptical about the validity of economic regulations167 — appeared to put the onus on the state to justify its intrusion on individual liberty.168
Relatedly, Carolene Products’s deference to legislatures in areas of factual ambiguity gave the police power appropriate room to breathe. Consistent with the original understanding of the Fourteenth Amendment, Carolene Products recognized that the amendment left significant room for reasonable regulation169 and that deference to legislative factfinding respected the compromises at the amendment’s core.170 This approach contrasted with Lochner’s, under which courts overtly substituted their assessment of the available evidence for legislatures’.171 It also diverged from Lee Optical, where the Court suggested that the caprices of the legislature merited total deference, even when a law, in light of the available facts, appeared “needless” or “wasteful.”172 This approach allows states to restrict economic liberty at will — a power inconsistent with the Constitution’s protections for economic rights.
Finally, consider Carolene Products’s loose means-end scrutiny, which appropriately balanced economic liberty against the state’s legitimate regulatory powers. Courts applying this test demanded “[r]easonableness[,] . . . not scientific precision,” in the relationship between means and ends.173 Lochner, by contrast, demanded a close — and perhaps unattainable — relationship between means and ends. In Lochner, not even statistical evidence casting doubt on bakers’ health adequately linked limits on bakers’ working hours to public health — the Court would have required even more conclusive evidence.174 This was the type of “scientific precision” that courts no longer required by the Carolene Products era. On the other end of the spectrum, Lee Optical barely pretended to engage in means-ends scrutiny. Despite acknowledging that “[t]he Oklahoma law may exact a needless, wasteful requirement in many cases,” the Court hypothesized three reasons why the legislature may have thought the regulation necessary.175 The Court remarked that a “law need not be in every respect logically consistent with its aims to be constitutional,”176 but that’s not really the test it applied; the Court hardly required the Oklahoma law to be in any respect logically consistent with its aims.177 In contrast, the Carolene Products test looked to actual facts to evaluate a law’s constitutionality and required a real connection between means and ends.178 The history of the Carolene Products era showed that its form of rational basis review was a meaningful check on legislatures — courts frequently invalidated laws that failed to draw a meaningful connection between means and permissible ends.179 But they did so without substituting judicial policymaking for legislative analysis.
In sum, only one of the three eras of twentieth-century economic rights jurisprudence — the Carolene Products era — is consistent with the nation’s judicial traditions of respect for economic liberty and deference to legislative exercises of the police power. Lochner recognized that economic rights are constitutionally protected but was unfaithful to the Fourteenth Amendment’s view that the states could reasonably regulate those rights. Lee Optical erred in the other direction, overemphasizing the tradition of deference while straying from the original understanding that the Fourteenth Amendment safeguards economic liberty. By charting a course between the shoals of Lochner and Lee Optical, the Carolene Products approach gives due respect to both the government’s police power and individuals’ constitutional rights.
IV. Sandy Meadows Revisited
To illustrate how Carolene Products–era rational basis review would apply to real situations today, consider Louisiana’s floral licensing regime — the one that ensnared Sandy Meadows. Unlike under the current rational basis analysis, Sandy would have had the opportunity to meaningfully challenge each of the state’s justifications for the law. In her case, Louisiana advanced three. The court held that each provided a rational basis for the licensing requirements; under Carolene Products–era review, none would have passed muster.
First, the state argued that requiring florists to pass an exam improved florist quality.180 This justification would have passed the first step of the rational basis test — consumer protection is a legitimate exercise of the police power.181 But the exam itself was not rationally related to florist quality. The Meadows plaintiffs presented testimony from florists who said that the skills tested on the exam were “totally outdated” and not relevant to their practice.182 The exam, moreover, was wildly subjective, with examiners giving applicants dramatically different scores for the same arrangements.183 And no other state required such an exam.184 On these facts, the state’s consumer protection justification would have fallen apart.
Next, the state claimed that licensing was necessary to protect public health and safety. As in the case of consumer protection, protecting public health is a classic object of the police power.185 But again, under Carolene Products–era review, the means wouldn’t have fit the ends. In accepting the state’s health and safety argument, the court relied on bare assertions from a state employee that licensed florists are “very diligent about not hav[ing] an exposed pick, not having a broken wire, not having a flower that has some type of infection” and that their conscientiousness “prevents the public from having any injury.”186 But the licensing commission’s own conduct undercut this rationale. The written component of the floral exam didn’t feature any questions about health or safety, and the commission didn’t keep records of floral safety issues or warn the public about safety risks.187 One commissioner even admitted “that he doesn’t ‘pay any attention’ to the issue.”188 And on a national level, the lack of injuries caused by unlicensed florists suggests that licensing is unnecessary to protect public safety. Like the consumer protection justification, the state’s health and safety argument would have wilted in the face of contradictory evidence.
Third, the state justified its law on protectionist grounds.189 The court accepted this argument, holding that “a state’s intent to enhance the floral industry . . . is a legitimate government interest which is rationally related to a floral examination.”190 Protectionism is quintessential class legislation, which is not a proper exercise of the police power.191 Even if the state hadn’t relied on protectionism to justify its law, the licensing scheme would have run afoul of Carolene Products’s soft prohibition on class legislation.192 As discussed, neither of the state’s alternative justifications were rationally related to a licensing exam. And licensed florists administered the exam, deciding whether to admit potential competitors to the business.193 Language used by the Oregon Supreme Court in striking down a price-fixing statute fits like a glove: Louisiana’s law does not “hav[e] a well-recognized and direct bearing upon the health, happiness, and well-being of the public as a whole,” but instead is a “statute of primary interest to the [florist] trade itself.”194
In addition to Louisiana’s argumentative defects, the Meadows case did not involve factual ambiguity that would have accentuated the presumption of validity and militated in favor of deference. The plaintiffs mustered evidence demonstrating that the licensing exam protected neither consumer welfare nor public health and safety.195 And Louisiana didn’t present facts that showed otherwise. It offered testimony from a state employee (and licensed florist) who believed that the exam promoted safety,196 but bare conjecture from a self-interested party doesn’t create a factual dispute. Louisiana failed to bring the evidence back into equipoise; with the facts favoring the plaintiffs, deference would have been inappropriate under the Carolene Products framework.
In sum, under Carolene Products–era review, Louisiana could have defended its regulation as a measure to protect public health or consumer welfare — both legitimate exercises of the police power. But the lack of fit between those ends and the licensing means would have undermined those justifications. And no factual ambiguity would have supported deference. Since the regulatory scheme appeared to do no more than protect one industry at the expense of potential market entrants, a court applying Carolene Products–era review would have invalidated the licensing requirement.
Conclusion
Writing in 2022, Sixth Circuit Chief Judge Sutton summarized the state of rational basis review well: “[T]he current deferential approach to economic regulations may amount to an overcorrection in response to the Lochner era at the expense of otherwise constitutionally secured rights.”197 True. But as the pendulum was swinging from Lochner to the modern rational basis standard, it passed through a period when courts properly calibrated individual rights and the states’ police power: the Carolene Products era. During this period, courts gave legislatures wide latitude to regulate the economy but meaningfully reviewed statutes to ensure that lawmakers had not acted in an arbitrary, unreasonable, or discriminatory manner. This jurisprudence struck the right balance between respecting the democratic process and vindicating Americans’ constitutional rights. Fortunately for all Americans, commentators198 and courts199 appear increasingly interested in applying a toothier version of rational basis review to economic regulations. Carolene Products–era rational basis review offers a path forward.