"The rational basis test was basically concocted out of thin air by the Progressive movement, gradually, but applied to American law with no constitutional basis. That's why you have cases like [the eminent-domain case] Kelo or these licensing restrictions that prohibit people from earning an honest living."
So says Pacific Legal Foundation attorney and author, Timothy Sandefur, who sat down with Reason.tv to discuss his book The Right to Earn a Living. The "rational basis" review grew out of a 1938 Supreme Court case and essentially argues that as long as a government action can be "rationally tied" to a "legitimate" government interest, anything goes.
Sandefur discusses the "four big Progressive ideas" that came about during the New Deal-era Supreme Court in the 1930's. They include: 1) Rather than being inherent, rights are permissions given to individuals by the state; 2) Government exists to "improve" society, not to protect individual rights; 3) A reading of judicial restraint that means when government violates your rights, the courts should do nothing about it; and 4) Belief in a "living Constitution," that will be radically reinterpreted in various contexts.
Approximately 8.30 minutes.
Shot by Jim Epstein and Dan Hayes. Edited by Dan Hayes.
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