Monday, May 30, 2011

Amendment #28 - The Rational Basis Amendment

The rational basis test is "a judicial standard of review that examines whether a legislature had a reasonable and not an arbitrary basis for enacting a particular statute." According to the Wikipedia article, this level of scrutiny is the lowest level of scrutiny that can be applied by the courts when engaging in judicial review, and in the case law it specifically applies to cases related to due process and equal protection issues relating to the 5th and 14th amendments respectively.

Sophomore year of college, I took my second favorite class of my entire college career (first being ELE 491, high tech entrepreneurship, where among other things, I was exposed to Tim Ferriss for the first time). It was a constitutional law class taught by Professor Ken Kersch (he was still at Princeton through my senior year). Admittedly, I slept through many of the lectures, but the precepts were incredibly engaging. Mine was run by Professor Kersch himself, and it was one of the first times I had to give any serious thought to the ideas of natural rights of man and the role of government.

During that class, I undoubtedly said some batshit things. I had yet to face my own mortality, I had yet to fully form my ideas about right and wrong, and I was still a few years from being exposed to the true level of incompetence and corruption in government. But I did say one thing that I'll remember to this day. One thing that looking back was a stroke of brilliance. I forget what case we were discussing in particular, but at some point I basically said that there was no rational basis for the law in question, and so the court should strike it down as unconstitutional. When Professor Kersch pointed out that nowhere in the constitution or case law does it require that there to be a rational basis to pass laws, I tried to create an ad-hoc justification from the Declaration of Independence and general sentiment of the Constitution taken in its entirety. I then went on to proclaim that we need to amend the Constitution with a rational basis amendment.

Today we take the first step toward that end, creating a first draft of the language of what an amendment like that might look like:

Section 1: No law shall be passed by Congress nor by any state that inhibits individual freedom or appropriates governmental funds without, at minimum, a rational basis for doing so.
Section 2: Existing laws are at all times subject to a rational basis scrutiny, and should be struck down in the face of new evidence.

How can anyone vote down an amendment like that? Last I checked, no one wants to be called "irrational" since it's pejorative. And because of the way the amendment is phrased, anyone voting it down will be automatically construed as irrational, since as rational human beings they support rational scrutiny of any law.

In discussing this with people, the primary objection to this that I always get is that the phrase "rational basis" could mean anything, but as we saw with the earlier definition, that's not really true. The rational basis test is well defined in case law, so it can't really mean "anything." The phrase "at minimum" is in there to prevent this amendment from being used as a loophole around employing a higher level of scrutiny where appropriate. Let's take a look at a couple of the policies that become unconstitutional as a result of this amendment:

  1. Farm and Subsidies - Grains and legumes, in particular corn, wheat and soy, make us sick. We feed them to our cattle and they make them sick, while at the same time decreasing the healthfulness of the meat produced making us sicker still (admittedly by a small margin). They create negative externalities. There is a better argument to be made for taxing their production than for subsidizing it. 
  2. Energy Subsidies - Energy subsidies are always billed as being there to encourage the exploration and market viability of alternative energy sources. Still, if you have an appropriate level of skepticism for everything that the American government does, it shouldn't surprise you to know that these subsidies actually hurt green energy companies. Subsidies are disproportionately allocated to (quick, opposite of alternative) traditional energy producers, actually making it MORE difficult for green companies to compete rather than less. Removing all subsidies across the board would make green technologies more price competitive as a result.
  3. Drug Laws - The war on drugs costs the US an inordinate amount of money, and does an atrocious job of preventing drug use or the drug trade. Addictive substances are not something you can take-on from the supply side, they must be dealt with on the demand side. To the extent which they create a negative externality, they should be taxed to cover the cost of that negative externality. 
  4. Prostitution Laws - The regulate and tax method applies here in the same way that it applies to drugs. Regulate the industry to the extent that it is safe for all participants, and tax the product to cover these costs.
  5. Gambling Laws - I'm particularly sour on this one since all of the major online poker sites were just shut down in the US not too long ago, but come on people. Legalize gambling, regulate it, tax to pay for the regulation, everyone wins.
  6. The Death Penalty - It costs more money to execute someone than it does to keep that same person in jail for life. Enough said.
  7. Obscenity/Pornography - The logical corollary to the right to free speech is that you lose the right to not be offended. That should be obvious, but I suppose it's not. A rational basis amendment means that restrictions would have to be subject to the rational basis test, and because of the offended corollary to the right to free speech, these items of legislation fail.

What do you think? Could this amendment be passed? If it were passed, how would America be different?


  1. Rationality in Congress? You must be smoking something...

  2. So if I want to sell a drug, and don't charge sales tax on it ... eventually facing arrest/a gun in my face is rational?

    Who have I hurt in this process? By what right does any government regulate by force?

    The same applies for prostitution. Unless your definition of tax is one of a voluntary fee, you are still missing the point.

    No one has the right to put a gun in your face unless and until you initiate force against another first.

    Fucking for cash is not the initiation of force. Regulate it sure, but the penalties cannot include the gun of government.

  3. Anthony,

    Regulation without the threat of force is meaningless. The right for the government to initiate force when laws are violated comes implicitly from the fact that you are living in this country. There is a social contract between government and individuals that allows for the initiation of force in the presence of the violation of a law.