Posts Tagged ‘Rational Basis’

This piece in the American Spectator coupled with yesterday’s federal court decision overturning California’s ballot initiative banning gay marriage are instructive.  Our elites have contempt for the people.  They don’t merely view their role as one of leadership or education; rather, they are largely hostile to all the majority hold dear.  Thus their respect for representative government is at an all time low.  Power has been shifted to unaccountable institutions:  three letter agencies, the federal reserve, and the courts.  While this mode of judicial activism took a hiatus in the 1980s, as of late, open-ended constitutional provisions on matters like “privacy” or “equal protection” are used like crowbars to prevent the majority from governing itself on a wide range of issues, including gay marriage, illegal immigration, and the public schools.

The words of the recent decision are only relevant as historical evidence; they do not form the basis for the decision, which is rooted in liberalism, an obsession for equality, and, likely in this instance, the fact that the federal judge in question apparently was gay.   Supposedly the decision was based on the lack of evidence submitted by California of a “rational basis” for the law in question, rational basis being the lowest form of scrutiny under the 14th Amendment.  (The decision is actually a bit unclear on this, insofar as the law supposedly is discriminatory and thus faces “strict scrutiny” and in other parts of the opinion the judge suggests it’s based on “rational basis plus” insofar as Prop. 8 was motivated by “animus.” But the longest discussion is on the lack of evidence of any “rational basis.”)

Of course, the big picture question is how can millions of Californians on a ballot do something that has no “rational basis.”  It defies common sense.  Judge Vaughn is, in effect, saying half or more of the State of California is mad and bigoted.  And what evidence would have sufficed for this Judge?  If California had a shrink say homosexuality was a mental illness little different from people that want to amputate their limbs or tear our their hair, would that be a rational basis?  If California noted that gays have higher rates of pedophilia and that generally stigmatizing them was a public good, would that be a rational basis? If California had a respected philosopher describe the connection of
nature, purpose, teleology, and basic natural law thinking of 99% of the world regarding marriage, would that provide a rataional basis?  If California had a statistician note the unhealthy aspects of the gay lifestyle–AIDS, STDs, suicide–and said it’s a public good to generally dissuade and shame people away from this (the way we shame other behaviors like smoking that are not illegal per se), would that provide a rational basis?  I don’t believe any such evidence–indeed, no evidence at all–could persuade him and his peers otherwise.  It’s obvious to them, in the same way it was obvious to Medieval Christendom that ghosts and demons and the devil were all part of the moral landscape.

And I know it’s frequently mocked as an analogy, but if this law does not pass rational basis, what of laws against polygamy, polyandry, beastiality, and a great deal else.  They’re all rooted in an “ick” factor and an inchoate sense that sexual relations need to be orderly, regulated, channeled. etc.  It’s true the sexual revolution and easy divorce have made this concept a somewhat forgotten one.  Indeed, the whole society and its values on this front have started to tear apart for both moral and economic reasons, but that doesn’t mean holding the line long past where it should have been held is “irrational.”  Social forces make rules just as much as those rules can create such forces.   The dissipation of these other rules and prejudices, just means that there’s a lot of work to do to restore some normalcy to our society.  I wouldn’t necessarily want to see sodomy laws enacted and enforced.  There is something to be said for tolerance.  But tolerance is a two way street.  And the gay rights movement has shifted its focus from one of mere decent and humane treatment to transformation of society, the society’s views of gays, and the level of public acceptance to which they are entitled.

This whole rational basis thing is just a not very clever way of saying that everyone who disagrees with me is irrational. Crazy, even. And it defies common sense to think that millions of Californians are all collectively mad and irrational.  Wrong perhaps.  Mistaken.  Old fashioned.  But irrational?  Indeed, to think so is the height of the irrational, not least because California’s referendum was not some mass movement to a new fad (which might allow an inference of collective madness) but the confirmation of a centuries-old custom.  And the willingness of a single judge to say this is irrational on the basis of the flimsiest of Constitutional reasoning, shows the arrogance and hostility of the present-day elite.  We have a new elite largely made up of a certain class of high IQ, Ivy League graduates and their fellow-travellers, folks who do, read, and think mostly the same things.  And the one thing they think most emphatically is that the vast majority of Americans are mean-spirited hicks and evildoers who need to be shown how to behave by their social betters. 

This is not a stable regime.  The elites of old were warrior aristocracies, skilled in arms and noted for their courage.  Over time this dissipated perhaps, as did their moral basis to rule, but as recently as World War II the British nobility died en masse on Flanders’ Fields and in the jungles of Burma.  This physical courage allowed these elites at times to rule contrary to the interests and customs of the more docile peasantry. 

Does this new elite know how to fight? 

It doesn’t seem so, which is one of the reasons they seem so eager to disarm the peasantry.  At best, they know how to flee, moving to some other commercial republic, some place like Israel or Switzerland or Singapore.  They do not have deep loyalty to place and love of their countrymen like family.  This feeling, the root of noblesse oblige, is entirely absent, and their rule is therefore unstable in the extreme.

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