Quotation of the Day…

by Don Boudreaux on November 18, 2017

in Law, Legal Issues, Regulation

… is from page 242 of Georgetown University law professor Randy Barnett’s excellent 2016 book, Our Republican Constitution; just before this quotation, Randy quotes Justice William Douglas’s poor excuse in Williamson v. Lee Optical (1955) for U.S. courts to grant near-blanket approval to all legislative regulations of business-consumer interactions:

Traditionally, a law that was not “logically consistent with its aims” was literally irrational and therefore unconstitutional.  Now it was perfectly constitutional.  In this way were courts deprived of the means by which they could assess whether a statute was within the just powers of a legislature to enact, and to do so without needing to carefully identify and circumscribe a “fundamental right.”  Gone now was an enforceable requirement that a law be “rational.”

DBx: Adding insult to this grievous injury of a U.S. Constitution neutered in its ability to restrain state power is the fact that the resulting standard that American courts now apply when determining if legislatively imposed economic restrictions meet constitutional muster is called the “rational-basis test.”

I recall my Constitutional Law professor at UVA, David Martin – who is no libertarian – say that a better name for the “rational-basis test” is the “not-looney test.”  Martin meant by this description to convey the fact that the rational-basis test has no teeth.  But I think that even “not-looney” fails to capture just how lunatic the rational-basis test is, for legislatures can and routinely do enact diktats that even a looney person is sane enough to understand serve no purpose other than to enrich some people at the expense of others, and to do so simply because those who are enriched have more political muscle than do those who are robbed.


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