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08/21/2016

John McGinnis on the Constitution and Rent Seeking
Michael Ramsey

At Liberty Law Blog, Johm McGinnis: The Constitution Constrains Rent-Seeking Without Eliminating Politics.  From the introduction:

Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.

Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.

Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest. The state must show that the legislation possesses a public regarding rationale and is not simply an instrument to transfer of resources or opportunity from one group to another. The great error of Williamson v. Lee Optical was that it permitted judges to make up a rationale for the legislation, and one that was not actually pleaded by the state, let alone supported by any evidence. Under the proper interpretation of the Fourteenth Amendment, legislation does not have to be perfectly rational, but it does have to some palpable basis in the public interest, such as health and safety. ...