In a column on the Supreme Court agreeing to hear a case involving a California law requiring that political donor lists be made public, George Will describes a curious legal distinction between “fundamental” rights that cannot be abridged and lesser “nonfundamental” rights that can be abridged if there is a “rational basis.” This current case, according to Will, would take the dangerous step of applying the “rational basis” criterion to a fundamental right.
For almost eight decades, courts, without justification from the Constitution’s text or history, have distinguished between “fundamental” rights, such as speech and association, and supposedly lesser rights involving economic activity, property and contracts. When judging government infringements of these secondary rights, courts have adopted the extremely permissive “rational basis” test: Any government regulation is permissible if the government asserts, or a court can imagine, a rational basis for the regulation.
Now, California’s attorney general implicitly wants the rational basis test extended to government’s infringement of rights to which courts have ascribed “fundamental” status — speech and association. This demonstrates three converging dangers.
One is that of relegating some rights to inferior status. A second is that of making those supposedly nonfundamental rights vulnerable to the nonprotection of the rational basis test. A third is that of allowing government, when it claims to be acting to prevent corruption or the appearance thereof, to merely assert a rational basis for regulating advocacy concerning public affairs.