All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few comments.
First, some people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional. That’s actually incorrect. The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality. If a statute is arbitrary or irrational, then it’s unconstitutional. That’s con law 101.
Next, some readers may not yet be convinced that the facts will show the genuine irrationality of throwing our clients in prison for using charitable funds to make more marrow donations happen. One enterprising commentator even did independent research on statistics to try to show that donating marrow isn’t as safe as we say it is.
We don’t need to prove the facts in a blog post (that’s for trial), but this discussion of the facts highlights something important: facts matter. As I said yesterday, a presumption of constitutionality is fine as long as it’s ultimately rebuttable through the presentation of evidence. The problem with taking the current standard (“negative every conceivable justification”) too literally is that doing so amounts to transforming the rebuttable presumption of constitutionality into an irrebuttable one.
Fortunately, courts don’t generally take the “negative every conceivable standard” literally. There are hundreds of winning rational basis cases across the country and the winning plaintiffs didn’t actually “negative every conceivable” justification for the invalidated government action. And what would it mean anyway to “negative” something and how could a lawyer know when she’d “negatived” literally […]