concluding that the court's conceived basis was rational, reasonably distinctive, and not arbitrary
How later courts described this case
- concluding that the court's conceived basis was rational, reasonably distinctive, and not arbitrary
- applying the rational basis test to a statute creating a tax exemption that directly affected the real value of retirement benefits
- rational basis test applicable to privileges and immunities claims
- rational basis standard applicable to equal protection claims in taxation context
Written by the judges who cited it.
The opinion
Rice Van Ausdall, Special Justice, concurring. Legal training, scholarship, intellectual honesty, and a firm belief in judicial restraint, dictate I join in the majority opinion. Conscience dictates that I write this concurrence.
Were this Court coming to this question anew, without the prior decisions standing clearly as precedents setting out the strained distinctions and somewhat tortuous reasoning justifying the exemptions, this decision might well be different. But while it may be true such precedents are not rules of property (Board of Trustees v. Beard, 237 Ark. 423 , 620 S.W.2d 295 [1981]), it has, at least to this writer’s mind, become a part of the “constitutional fabric.” (See 13 Ark. L. Rev. 238 ,249). When considering this question, the words of Omar come rushing back to mind: “Could you and I, with Him conspire, to grasp this sorry scheme of things entire; Would not we shatter it to bits; And remould it, nearer to the heart’s desire?” That the present scheme of things, with exemption heaped upon exemption, distinctions overdrawn, and fanciful reasons grasped out of the air to justify a special interest, is sorry, seems to only state the obvious.
But this writer, well steeped in the tradition of judicial restraint, and whose warp and woof of his early legal learning was that the role of the judiciary is to construe the law, and leave the law making to the legislature, must abstain from, at this late date, agreeing that the “rational basis” and “reasonable distinction” tests are to be overturned. They have become a part of this State’s “constitutional fabric.”
Probably no useful purpose is served by observing that these exemptions point out the inordinate, and unhealthy, influence that the beneficiaries of these enactments have in the legislative halls. But in the interest of conscience, this observation must be made.
But finding that the legislation is pernicious, is not a finding that it is unconstitutional. Judicial restraint, if it is to have meaning, must be observed, even in the face of legislative mischief, so long as that mischief is not contrary to the constitution. This Court has settled what the constitution says to this question. Reversing these decisions would be a violation of the restraints inherent in the judicial process, and cause this Court to engage in the same type of breach of trust that the General Assembly did when that body enacted these exemptions. As no less a personage than Justice Felix Frankfurter points out, judicial restraint is the “essence in the observance of the judicial oath.”
We are not unmindful of the concept of the “result oriented” method of deciding constitutional questions, and that this approach enjoys considerable popular currency in the legal community. 27 Ark. L. Rev. 585 , 601. This approach frankly admits the role of the judiciary to be a law giver, governed not so much by the written words of the constitution, and the precedents, but by the needs of society. This concept views the constitution as Darwinian in nature, always in a state of becoming, changing as the forces in society change. This view appears to be premised on the notion that judges are best equipped to determine what is best for the common weal. In addition to this premise having doubtful validity in fact, it smacks of elitism.
To a free society, the constitution is the political and governmental Holy Writ. It is the shrine before which every knee must bend, and every tongue confess. This fidelity is demanded no less from judges, elected or appointed, than any other member of society. Changes in this document should proceed only from the collective genius of the body politic.