The Rational Basis Test [No. 86]
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The Rational Basis Test [No. 86]


So the rational basis test is the baseline
test that courts use to determine whether statutes are consistent with both due process
and equal protection. It’s the baseline test that all laws have
to pass. It requires that every law be first hypothetically
designed to serve a legitimate governmental purpose, something that we think government
should in fact be able to do. And it further requires that that law be reasonably
related to that purpose. That is, it requires that the law in some
way actually serve the purpose for which it is enacted. The presumption is that a law is in fact constitutional,
and therefore the burden is on anyone challenging that law to show that it was not established
for a legitimate purpose or that it doesn’t reasonably further that purpose, and thus
doesn’t really deserve to be a law. Many writers of the American Revolution argued
that the acts, such as the Stamp Act, were in fact not law because they were contrary
to reason. That is, they did not have a rational basis. Probably the best formulation of what I like
to call the classic rational basis test comes from 1880. There was a case soon after the Fourteenth
Amendment applied due process and equal protection to state laws. It’s Mugler versus Kansas, dealing with the
sale of liquor. And in that case, the Court upheld the statute,
as most statutes under rational basis are in fact valid statutes, but it said, “Not
just everything that the legislature passes is worthy of being a law. Rather, it does have to reasonably further
some legitimate interest.” Then in 1938, Carolene Products established
the tiered scrutiny that we have today. That is, this idea that under the due process
clause, we have strict scrutiny for laws that interfere with fundamental rights, but rational
basis scrutiny for laws that just affect any other rights we have that are non-fundamental. So in 1952, the Supreme Court decided a case
from Oklahoma, which is Williams versus Lee Optical. An Oklahoma Law was, uh, measured to protect
optometrists from these new opticians who were pushing into their business. And in that case, what the Court adopted was
what we tend to call the modern version of the rational basis test. And under this modern version, although the
elements of the rational basis test are the same, the test for establishing those elements
are not. So, the legitimate interest doesn’t actually
have to be the interest that motivated the passage of the statute. In fact, it doesn’t even have to be an interest
that the legislature even considered. It can be anything that courts think might
be legitimate. Then the second element of the test, which
generally requires that the law be reasonably related to that interest, it’s enough if the
legislature might have thought that it was reasonably related. That is, it can be totally unrelated. All we care about is that they reasonably
thought it might be. And so the rational basis test today has in
fact become a completely hypothetical speculative test. There’s no burden on the government to introduce
anything. The burden is rather on the challenger to
hypothetically think what are the multitude of reasons that might justify this law. And then courts have to speculate, “Could a
reasonable legislature have thought that this would further this legitimate interest?” There is in fact a fairly robust debate in
the legal academy dealing with rational basis. Now, there have been people who have argued
for a higher standard than even the classic rational basis test for all rights. Any statute that affects life, liberty, property,
is unconstitutional unless the government can show that there is a valid reason for
it. There are a number of legal scholars that
are in favor of a rational basis test that is more robust, that is closer to the classical
formulation. There are some legal scholars who adhere to
this idea that we don’t actually need a rational basis test. If a law isn’t affecting a suspect class or
isn’t affecting the fundamental right, then the government should be pretty much free
to do whatever it wants. The rational basis test is the default level
that all laws must pass under due process scrutiny. So, any law that affects life, liberty, or
property has to, at its bottom, hypothetically serve some legitimate governmental purpose
and it must be reasonably related to the interest that it’s trying to further. If it doesn’t do that, then it fails the rational
basis test.

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