My view of Robert's two questions begins with the second. It strikes me that irrational in the minimal rationality test means does not mean "not logical." It means "not reasonable" in, as he suggests, the "too extreme for our taste" sense. Lots of cases show that, but Romer v. Evans is a good case with which to start.
To recur to the second question. I think the courts, not just "the Court," have always allowed legislatures more latitude on what tax laws were "too extreme for our taste" than police power laws. Far more police power laws have been struck down as not having a reasonable relation to a legitimate purpose than tax classifications, not to mention tax rates. As for allowing taxes to be used to confiscate or destroy, recall that in the 1860s, the national government took control of the currency by making it impossible for state banks to issue banks notes. The Court upheld the national government's destruction of state bank notes by allowing Congress to impose a 10% tax on their issuance. The case, if I remember correctly, was the Veazie case. Does any one know whether this drove, or was intended to drive, state banks, and not just their notes, out of business and whether it did? Stephen Siegel DePaul University College of Law On Fri, 30 May 2003, Robert Sheridan wrote: > Stephen Siegel wrote: "...The Court's categorical protection of the > right to devise property involved the government's police power, not its > taxing power, which is what this thread is about." > > I'd like to ask a question (or two) regarding the deference the Court > will show to legislative acts consistent with the abandonment of Lochner > theories of laissez-faire, Social Darwinism, anti-Socialism, and any > racial or other considerations that may have motivated the Court during > the Lochner era. As I understand it, the Court said (in Carolene, and > following, with exceptions for the famous Fn. 4 categories of > fundamental rights, certain minorities and protection of the political > process)it would no longer presume to judge the 'wisdom' of > legislatures. It would instead apply a rational basis test to 'ordinary > economic and social reform legislation.' > > 1. Do laws imposing taxes and affecting property rights come within > the category of ordinary social and economic reform legislation, as I > suppose they do, or do they receive different treatment as being in some > other category? > > 2. Does 'rational basis test' refer strictly to the logical > relationship between the means and supposed end, or has it also been > held to mean 'reasonable' in the sense 'maybe not arbitrary or > capricious (the Court definition of 'irrational,' see Crawford v State > Farm) but just a little too extreme for our taste?' > > The reason for the question was an earlier suggestion that a rule of > reason prevails in constitutional law. I hadn't thought it prevailed > necessarily in rational basis review. I thought the cases showed that > the principle, in cases where a statute or legal scheme, as in Crawford, > was held unconstitutional, is that before 'mere unreasonability' was > held sufficient, it must reach the point of illogicality as a matter of > law, in effect. > > Thus a moderate increase in the minimum wage would be upheld but a > quadrupling that was likely to drive large numbers of employers out of > business or cause wide layoffs would be held illogical to protect > workers. Similarly as to taxes: certain increases okay, total > confiscations not, either on rationality or takings grounds. > > 'Reasonable' and 'rational' thus may have some overlap, but are not > necessarily congruent, as I understand the terms. > > Thanks, and sorry if I appear to belaboring something; I'm trying to > satisfy myself I'm not TOO confused (or get myself unconfused if I am). > > Bob Sheridan > SFLS > > > > > -----Original Message----- > From: Discussion list for con law professors > [mailto:[EMAIL PROTECTED] On Behalf Of Stephen Siegel > Sent: Friday, May 30, 2003 2:08 PM > To: [EMAIL PROTECTED] > Subject: Re: Constitutional Limits on Tax Levels [was: Statistics] > > > Frank Cross wrote: > > First, it seems that the relevant property right is that of the parent, > not the child. A confiscatory estate tax would not seem to "take" that > property, instead it simply prohibits passing the property on at death. > The parent would still be free to dispose of his or her property as > wished until the time of death but denied the opportunity to pass it on > then. For this to be a taking, you would have to hold that the ability > to pass your property on at death was an essential part of the bundle of > property rights, which would seem difficult to argue if you were > entirely free up to that point. > > To which I observe that the Supreme Court has essentially held it is a > catagorical taking of property for the government to entirely deny > someone the ability to devise real estate. See Hodel v. Irving, 481 US > 704 (1987); Babbitt v. Youpee, 117 S.Ct. 727 (1997). This holding > reflects the Supreme Court's conceptualistic approach to property in > which some sticks in property's bundle of rights receive more protection > than others because they are "fundamental." The stick of "right to > exclude" received categorical protection in the Loretto case (1982); the > stick of "economic use" received categorical protection in the Lucas > (1992) case. Probably because it (slightly) predates this development, > the stick of "commercial sale" did not receive categorical protection in > Andrus v. Allard (1979). > > The Court's categorical protection of the right to devise property > involved the government's police power, not its taxing power, which is > what this thread is about. > > Stephen Siegel > DePaul University College of Law >
