In my new article, “Rebuilding the Fourteenth Amendment: Prospects and Pitfalls,” I contend that the libertarian community must focus more attention in the future on what exactly violates the rational basis test. It took a long time to show that some things actually do violate it. But the harder step is to persuade courts to actually use rationality when applying that test. That begins with an acknowledgement of the role that political philosophy plays in law—something that a lot of people are reluctant to admit. Yet it’s inescapable: to determine what is “rationally related to a legitimate government interest” requires that we determine what is and is not a legitimate government interest. Yet courts have refused to answer that question—with results as disastrous as Powers v. Harris:
The correct answer, and the one the Court will be forced to face someday, is that economic liberty and private property are fundamental human rights, and that the taking of wealth or economic opportunities from some groups and giving them to others as a mere exercise of political will is illegitimate. Powers must be recognized for what it is: among the most nihilistic pronouncements of any American court. It goes beyond the (false) notion that the Constitution is made for people of fundamentally differing views, and asserts that the Constitution is also made to enable the legislative majority to impose its will without any requirement that its legislation serve some conception of the public good. Yet the very purpose of a written constitution is to ensure that there are limits to the political process, to prevent that process from degenerating into a mere combat of wills whereby economic opportunities, resources, and other goods are redistributed according to raw political power. The Constitution of Oklahoma (situs of the Powers case) declares that “government is instituted for [the people’s] protection, security, and benefit, and to promote their general welfare,” and that “[a]ll persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” The Powers decision rejects these principles wholesale. These principles are no less a part of the Fourteenth Amendment. They are embedded in the Due Process of Law Clause, which forbids the government from exercising its powers in an arbitrary or causeless fashion, and requires the government to abide instead by a rule of law—which is to say, by such substantive values as regularity, publicness, comprehensibility, etc., which together distinguish lawful rule from arbitrary rule.
From the days of Aristotle to Thomas Aquinas to John Locke to James Madison to Lon Fuller to the present, constitutional thinkers have agreed on at least this: that legitimate government rule seeks to promote the public good, and not merely to benefit those who exercise government power. And since the founding of the country, that has been understood as a basic principle of Due Process of Law. Obviously the ticklish question is: what counts as the “public” good? But the Powers Court did not seek any answer. Rather, it rejected the very possibility of answers; it spurned the proposition that government actions, to be legitimate, must aim at any kind of public good, and ruled instead that whatever economic restrictions the government sees fit to impose—even if they are concededly not for the public benefit, but are adopted solely for the self-interest of a politically influential faction—satisfy the legitimate government interest prong of the rational basis test ipso facto. And the reason? Because to “apply[]” a contrary rule “in a principled manner would have wide-ranging consequences.” How disgraceful: to refuse to issue a legally correct ruling on the grounds that it might prove hard to enforce.
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