Today, Prop 8; Tomorrow, Obamanomics

Judge Vaughn Walker has issued a decision in California’s celebrated gay-marriage case that introduces an exciting new dimension into constitutional law as it pertains to public policy. As far as I am able to tell, Judge Walker’s decision striking down the amendment to the California state constitution made via Proposition 8 appears to have been based entirely on his personal assessment of the credibility of the social-science literature. He has, in essence, decreed that voters must cast their votes for the right reasons, and if they do not then they must be prepared to see the results of their votes overturned.

I find this decision exciting because of its ramifications for the wholesale reform of misguided economic policies that it offers. Consider, to cite a homely example, minimum-wage laws. There is no shortage of economists who would be willing to testify to the economic harm such laws cause to aspiring entrants into the labor force who suffer from a lack of either marketable skills or a significant employment history. Advocates of minimum-wage increases offer only illogical claims and one notoriously flawed study. Clearly Judge Walker’s criterion indicates that minimum-wage laws deprive unskilled workers of the equal protection of the law guaranteed to them by the 14th Amendment, since only they suffer the consequences of those laws.

Judicial repeal of minimum-wage laws is but one small step toward the complete implementation of Judge Walker’s constitutional vision. Nearly any economist specializing in tax policy can explain why the corporate income tax is a bad idea on economic grounds. Since it taxes people with equity claims more heavily than people with debt claims to the income of any corporation, regardless of how similar social science may show those people to be, it is clear that the corporate income tax is flagrantly unconstitutional under the Walker Standard. Indeed, it may well be the case that any taxation of the income from capital is unconstitutional under this legal doctrine.

Thanks to the wisdom of Judge Walker there is an excellent chance that the Supreme Court will, if it fails to overturn his decision, render obsolete the celebrated and vastly influential dissent of Justice Holmes in Lochner v. New York, in which he famously wrote:

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract…I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

Gay marriage may indeed prove to be the ultimate libertarian issue, in ways its proponents may not have realized or intended.


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One Response to Today, Prop 8; Tomorrow, Obamanomics

  1. A.W. says:

    First, there has been for some time a stunning disconnect between the democrats’ libertarianism on a few issues, and then their totalitarianism. I have long made the joke that if you say you are going to put a fag in your mouth, you better mean a gay man and not a cigarette. And you will be sent to sensitivity training to teach you not to call them that. now as politics that is allowed, but what is disturbing is that this is also allowed to go on in the law. Which is not to say it is okay to be inconsistent in politics, just that its your prerogative.

    In one post I supposed that Obamacare, if it stood, would lead to Lawrence v. Texas being overturned, because if your personal health care became a matter of public concern, then it is very easy to ban all kinds of things. Salty foods, gay sex, and so on. Which is ironically why I think Kennedy will never allow Obamacare to be upheld.

    Now the sticking point here is that all those funny application of Walker’s logic have to be applied to some kind of discrimination. And by discrimination I mean any difference of treatment between any two people, however justified. Like technically we discriminate against people guilty of murder all the time in the sense that we fine, imprison and, in Texas, kill them. And there is nothing at all wrong with that. so you have to find a discrimination there. which usually can be found.

    I discuss the law of discrimination in a lot more detail, here in a thread at patterico:

    For instance, minimum wage only applies to employees, and not contract workers. So… discrimination!

    Thus I think your joke works.

    But we have to be fair to Walker, even if he is being kind of a schmuck in this. If you go through that post on patterico you will learn that normally rational basis review is really, really permissive. But what he did here was more like intermediate scrutiny or strict scrutiny. So he said he was applying one test, but his analysis actually applied a different test. Which is exactly what the supreme court did in Romer v. Evans and Cleburne v. Cleburne Living Center.

    But a lot of what he says is still a fat target for this kind of mockery. The example I gave where he predicted that gay marriage will not harm straight marriage, and that this was presented as a fact is a good example. To repeat myself from Althouse, a prediction of the future cannot possibly be a fact. Chances are I will go to sleep in the same bed as my wife and have bad breath and B.O. tomorrow morning. I would guess that the chances that this will happen is around 99%. But I cannot assert it IS right now a fact that I will, in the future have do all of those things. That’s insanity, and I think bluntly most liberals who actually know the law are kind of cringing when they read that sort of thing.

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