pageok
pageok
pageok
Time to Revamp Rational Basis Review:

Eugene's most recent post notes yet another case where courts have purportedly applied "rational basis" scrutiny to a law, but in reality have held it to a stricter standard. If judges believes that a particular classification deserves a less deferential form of scrutiny, they may well have good reason for reaching that conclusion. But instead of pretending to apply the rational basis test, they should explicitly indicate that they are applying a higher standard, such as "intermediate scrutiny" (the level of scrutiny now applied to sex-based classifications), or "strict scrutiny (applied to racial, ethnic, and religious classifications).

Traditionally, a law that is only subject to "rational basis" review by courts applying the Equal Protection Clause of the Fourteenth Amendment, would almost certainly be upheld. The law or regulation need only be "rationally related" to a "legitimate government interest," with no real judicial scrutiny of 1) the likelihood that the law actually will succeed in promoting the "interest" in question, or 2) the degree to which the enactment of the law actually was motivated by the supposed interest. The whole point of the rational basis test was to ensure that only most incredibly moronic of laws using a given classification would be struck down.

In recent years, however, courts have increasingly used the rational basis test to strike down laws that would almost certainly be upheld under the traditional ultradeferential version of the test. Eugene's post on the Tenth Circuit's decision to strike down Oklahoma's rule for considering the admission of nonpublic schools to the state athletic association is a noteworthy recent example; as Judge McConnell explains in his concurrence, the rule would almost certainly be upheld under the standard form of rational basis review. Perhaps the most famous example is <Romer v. Evans, a 1996 case where the Supreme Court essentially held that some kinds of laws discriminating against homosexuals, although officially subject to rational basis review, would in reality have to pass a more stringent version of the test than that applied to most other laws.

In many cases, I think that increasingly stringent judicial scrutiny is justified. But courts that decide to hold a given type of classification to a higher standard should be open about what they are doing, instead of pretending to apply the traditional rational basis test. Otherwise, it will be difficult to distinguish between those classifications that are still subject to the traditional highly deferential rational basis scrutiny, and those that must pass a stricter "rational basis plus" standard. This point is particularly relevant to appellate courts, especially the Supreme Court. Perhaps the most important function of appellate courts is to provide clear rules for lower courts to follow in making decisions.

To be sure, it may be that Supreme Court justices would like to continue to fudge the meaning of the rational basis test in order to increase their discretion in deciding future cases. A law discriminating against homosexuals that the justices dislike (such as the one in Romer) can be struck down by applying "rational basis plus," while one that they prefer to leave alone (such as a ban on homosexual marriage), can be upheld under the traditional rational basis test. And all of this can be done without ever explicitly committing the Court to any clear general rule governing judicial scrutiny of sexual orientation classifications. However convenient for the Supreme Court, this kind of sleight of hand undermines the transparency of the legal system, and also makes it difficult for lower courts to apply Supreme Court precedent consistently. If the Supreme Court majority believes that laws discriminating on the basis of sexual orientation require greater scrutiny than that imposed on ordinary legislation, they should write an opinion explicitly stating that holding, and outlining the higher standard that such classifications must meet.

It may be unoriginal to suggest that appellate court decisions should mean what they say and say what they mean. But it's a good - and even "rational" - rule nonetheless.

Related Posts (on one page):

  1. Time to Revamp Rational Basis Review:
  2. Religion:
anonVCfan:
Perhaps it comes from the notion in some quarters that public opinion is a proper tool in interpreting the constitution. If I'm a judge and I'm confident that my opinion is popular enough, I need not show any respect to an opposing viewpoint and I can deride it as "irrational."
4.12.2007 11:51pm
33yearprof (mail):
What good is a bill of rights can't block any law short of irrational. Why bother to fight a Revolutionary War, debate a BoR, and seek ratification if it's just a charade?

No wonder real people have so little respect for pettifogging lawyers and judges who blow in the winds on majoritarian fashion.
4.12.2007 11:56pm
Cornellian (mail):
Perhaps it comes from the notion in some quarters that public opinion is a proper tool in interpreting the constitution.

Popular opinion is neither an appropriate basis upon which to overturn a statute, nor an appropriate basis upon which to uphold a statute.
4.13.2007 12:04am
Humble Law Student (mail):
But I most protest, such a change will make Con Law II much less interesting.
4.13.2007 12:46am
Waldo (mail):
I don't see how Romer is a stretch of rational basis. There's a difference between Romer and gay marriage. In Romer, Colorado prohibited localities from enacting laws prohibiting discrimination against gays. Even as a non-lawyer, this doesn't seem to meet the 14th amendment's guarantee of equal protection. In the case of marriage, however, a state can reasonably argue, as New York did, that there is a rational basis to recognizing that marrigae infers a relationship between men and their biological children.
4.13.2007 1:06am
Duffy Pratt (mail):
Last I looked, the word scrutiny does not appear in the Constitution. No matter what the judges are saying they are doing, it is up to lawyers and future judges to make sense of it by comparing the facts in cases before them to the facts in cases already decided. We would be much better off if people paid close attention to facts and outcomes in particular cases, and not so much to rules or tests the judges proclaim will solve every future case, instead of just the case before them.
4.13.2007 1:39am
mcf:
dfo you have any authority for your statement that: "The whole point of the rational basis test was to ensure that only most incredibly moronic of laws using a given classification would be struck down." Any authority at all? I'm going to say - no.
4.13.2007 1:43am
Daniel950:

A law discriminating against homosexuals that the justices dislike (such as the one in Romer) can be struck down by applying "rational basis plus," while one that they prefer to leave alone (such as a ban on homosexual marriage), can be upheld under the traditional rational basis test.


If the only basis for striking down laws is the likes and preferences of a judge, then remind me why the heck we bother to elect legislators in the first place. Judicial activism makes a mockery of democracy.

Duffy Prat is right. I don't see the word "scrutiny" at all in the Constitution, and the Constitution is not rocket science. Judging is supposed to be about the use of argument. Scrutiny systems are merely a way for lazy judges to avoid exposure of their own biases because they're not equipped to make an effective argument. I think that the quality of judicial decisionmaking would be highly raised if all scrutiny systems were thrown out and never used again, as well as 3-part tests, 4 part tests, tests, tests, and more freaking tests. I don't recall reading anywhere in the Constitution that a law about race, sex, religion, or any other social characteristic should have any set level of deference from a court, or any set test to determine its constitutionality.

But because activist judges like to impose their preferences and biases, we get scrutiny systems and tests. What a sham.
4.13.2007 2:09am
Ilya Somin:
dfo you have any authority for your statement that: "The whole point of the rational basis test was to ensure that only most incredibly moronic of laws using a given classification would be struck down." Any authority at all? I'm going to say - no.

Not every statement needs to be supported by "authority." In this case, like many others, it's enough to rely on common sense and the virtually universal understanding of jurists at the time when "rational basis" was first introduced, and for many years thereafter.
4.13.2007 2:16am
Ilya Somin:
We would be much better off if people paid close attention to facts and outcomes in particular cases, and not so much to rules or tests the judges proclaim will solve every future case, instead of just the case before them.

Cases can't be decided simply by paying "close attention to the facts." Judges also need to know what facts to look for and what their legal significance is. To answer those questions, they must have rules - especially in a complex legal system that must decide tens of thousands of cases each year in at least a reasonably coherent and consistent way.
4.13.2007 2:18am
Ilya Somin:
I don't recall reading anywhere in the Constitution that a law about race, sex, religion, or any other social characteristic should have any set level of deference from a court, or any set test to determine its constitutionality.

That is true, of course. But the Equal Protection Clause also does not say that there shouldn't be scrutiny systems. Quite simply, the text of the Clause is extremely vague (forbidding denial of "the equal protection of the laws," without specifying what "equal" means or what classifications are forbidden or disfavored). In order for courts to apply it in practice, they need a system of interpretive rules. The "level of scrutiny" standards are one way of filling this need. They are not ideal, by any means, but it is a mistake to believe that we can dispense with interpretive rules and just apply the text alone. At least not when dealing with a vague part of the Constitution such as the Equal Protection Clause.
4.13.2007 2:21am
ReaderY:
I think it is complete hubris for judges to claim to have any greater knowledge of what is rational more than legislatures, just as it is laughable for 5 justices to claim to know more about what is rational than the other four.

Rational basis review is a throwback to days when people considered the law objective and judges a breed above members of juries. We don't believe that anymore. Judges should leave legislating to legislatures, absent violation of an enumerated right or an equal protection violation, and should stop trying to sell their private political beliefs as "reason" or label those who disagree with them "irrational". It ill becomes the judiciary, and it certainly doesn't have anything to do with the Constitution.
4.13.2007 2:36am
Josh:
Prof. Somin,

I must say that I am conflicted by your post. On the one hand, it is quite obvious that almost anytime a normal law is struck down for failing rational basis scrutiny, a higher standard than normal is being applied. It would serve an institutional purpose for courts to be more explicit and create another niche standard for cases like this. On this I agree.

On the other hand, the 10th Circuit in this case adapted what they had to deal with (the rational basis analysis) to nonpublic schools being treated in a wholly different manner than the public schools (presumably regardless of the nonpublic schools' satisfactory completion of other neutral institutional standards), and simply applied Farber and Sherry's "pariah principle" version of rational basis scrutiny.

The Court and the Circuits seem logically justified in creating and adapting this type of rational basis scrutiny in the few cases where a class of persons (in this instance, juridical persons) are being singled out for their unpopularity rather than for a rational difference. Treating a class of persons differently just because they are unpopular or disliked strikes me as irrational as any teenage bully simply beating up on the weak and/or unattractive. It seems reasonable to me to ask that government not act like in such a manner, because after all, they're not in high school anymore (although I realize that this case involves high schools).

I think that Judge McConnell's opinion was more accurate when he likened this case to Willowbrook, though, because the factual record seems to show animus to this particular school, rather than to nonpublic schools generally. Thus, it would have been more restrained for the 10th Circuit to narrow its holding and probably not rely so much on the pariah principle. That being said, it strikes me as ridiculous to label the 10th Circuit as "activist" by any of the five or six different standards as to what that term is supposed to mean.
4.13.2007 2:51am
Jk (mail):
The Alaska Supreme Court has developed a unique -- and perhaps more intellectually honest-- sliding scale test for equal protection cases: the more important the right, the higher degree of scrutiny.

I believe the court adopted Justice Marshall's suggestion from Zabloki (sic?)
4.13.2007 2:56am
Cornellian (mail):
Judges should leave legislating to legislatures, absent violation of an enumerated right or an equal protection violation, and should stop trying to sell their private political beliefs as "reason" or label those who disagree with them "irrational". It ill becomes the judiciary, and it certainly doesn't have anything to do with the Constitution.

The 14th amendment is an enumerated right, and it provides for "equal protection of the laws" without defining any of those terms, and with no indication in the text that its scope is limited to race, gender, age, nationality or anything else.

So how would you decide whether a particular statute violates the 14th Amendment?
4.13.2007 3:05am
Cornellian (mail):
But because activist judges like to impose their preferences and biases, we get scrutiny systems and tests. What a sham.

If level of scrunity and tests constitute judicial activism, then every judge in the history of the common law has been a judicial activist and had been for centuries before the American Revolution. Thus, the founders obviously didn't have any problem with this judicial activism, since they set up the Constitution anyway, despite every judge in the history of the common law applies levels of scrunity and tests to determine particular results.

The common law isn't written down in a codified form, that's what distinguishes it from the civil law systems of continental Europe. It's not enough to decide cases in a common law system, you have to explain how you got to that result so that people (including other courts) can reach consistent results in future cases. That explanation constitutes a "test" and it's the exact opposite of judicial activism, it's a means to keep the judiciary on the same page in similar circumstances. Judicial activism would be having no tests at all to determine anything, and having the judge just announce the result with no reasons or explanation at all.
4.13.2007 3:26am
Politicomonkey (mail) (www):
ReaderY:

The question asked with rational review is not whether the law is rational, it whether it is rationally related to a legitimate governmental interest.

The judges aren't looking out for legislators that need to be in the nut house or who have gotten confused, they are looking out for legislators who are passing laws to screw over a group of people just because that group is unpopular.

The way the test is structured makes this clear. The judges don't look at all at whether the legislature had a good idea when they passed the law, all they look at is whether someone could come up with some legitimate purpose for the law, even if it is clear that that wasn't the intended purpose at the time the law was passed.

As it is, it is extraordinarily rare for a plaintiff to win if the court chooses the rational review level of scrutiny. The only two instances I can think of are Romer (mentioned above) and a case in which the legislative record included explicit statements that the purpose of the law was to "get hippies" (I can get the cite if necessary). I don't think that it is too much of a stretch to say that the 14th Amendment's equal protection clause, possibly combined with the 1st Amendment right of assembly shouldn't bar laws specifically designed to injure a group just because the majority doesn't like them.
4.13.2007 4:08am
CJColucci:
Justice Stevens once said, if memory serves in Craig v. Boren, that for all the folderol about varying levels of scrutiny, there is really only one equal protection clause and the cases reveal beneath the language used a single test fairly consistently applied. This has not has the follow-up either judicially or, as far as I know, from scholars, that I think it deserves.
4.13.2007 8:58am
Some Law Student (mail):
I'm waiting for somebody to come up with a definition for "activist judge" other than "a judge who makes a decision that I don't like."
4.13.2007 10:00am
springjourney (mail):
Don't pretend people are stupid. You are not going to get homosexual sex equalized with marriage. Sex preference is a rational basis, that is it.
4.13.2007 10:26am
Justin (mail):
Some Law Student,

Keep waiting.
4.13.2007 10:42am
Jake (Guest):
I thought the traditional understanding was that when you see cases where laws are struck down on "rational basis" review, that's an indication that the Supreme Court will soon be recognizing a new protected class. On the other hand, I'm not sure that that view is derived from anything other than the gender cases; AFAIK the pattern hasn't held for disabilities (the halfway home case) or homosexuality.
4.13.2007 10:47am
Just Dropping By (mail):
I'm disturbed at the number of law professors who think "rational basis" means "government wins". If that is what the standard means, why even bother with the farce of reviewing statutes at all? If, however, the standard means what it says (rationally related to legitimate government purposes), then one should expect laws to be routinely struck down under it. The fact that so many patently illegitimate statutes are upheld by the courts is what truly shocks the conscience.
4.13.2007 11:15am
frankcross (mail):
This is a legitimate issue but the answer is not simple. Scrutiny tests are meant to cabin judicial discretion. Rational basis pretty much has meant no scrutiny, while strict scrutiny has been an extremely high bar. This system reflects great mistrust of the judiciary and its inability to draw principled distinctions, hence funneling cases into one of two categories that leave little room for judicial judgment. If you have greater faith in the judiciary to not be ideologues, you would favor greater discretion. Such a judiciary could make principled equal protection judgments based on principles of equality. If you have great mistrust of the sincerity of the judiciary, you wouldn't want discretion.
4.13.2007 11:44am
Cornellian (mail):
Politicomonkey,

I think in the last paragraph of your post you mean "should bar laws" not "shouldn't bar laws."
4.13.2007 11:45am
Cornellian (mail):
If, however, the standard means what it says (rationally related to legitimate government purposes), then one should expect laws to be routinely struck down under it.

Rational basis means government almost always wins, but not quite 100% of the time. It's extremely lenient - there just has to be any rational basis for the law, even one the legislature itself didn't think of, and that doesn't have to be the sole or even primary purpose of the, nor does the law have to do a very good job of effecting the objective to which it could theoretically be rationally related, nor does there have to be very good evidence of the rational relation, only enough that a legislature could have though there was a rational relation. All in all, it's not surprising that hardly any law is ever struck down on this basis. In fact I can't recall any case where a law has been struck down on this basis where it wasn't also an obvious attempt to harm a politically unpopular group.
4.13.2007 11:49am
Antares79:
It is interesting that levels of "scrutiny" are now used for analysis of rights outside the 14th Amendment. For example, 1st amendment rights often get strict scrutiny (prior restraints on speech even have their very own type of scrutiny). What this essentialy does is takes the "shall not be abridged" and tacks on "unless narrowly tailored to meet a compelling government interest." I think this is sensible, but it's not textually honest (is it?).

I'm curious when this "scrutiny bleed" started occuring. The "shouting fire in a theater" can be punished because it reflects a compelling government interest in health and safety, but I don't remember Holmes (?) saying that the punishing had satisfied some level of scrutiny. When did the Court start easing limitations on government powers based on "scrutiny"? The 1940s, 50s, 60s, later?
4.13.2007 11:57am
Alex 2005 (mail):
Because this discussion raises questions about the distinction between constitutional doctrine (e.g., tiers of scrutitny) and constitutional meaning (i.e. what does the EPC mean), I recommend articles by Professors Roosevelt (Penn), Berman (UVA), and Amar (his foreward in the Harvard Law Review) on the subject. Roosevelt's book on judicial activism provides a nice intro on distinguishing between doctrine and meaning.
4.13.2007 11:58am
33yearprof (mail):
[quote]the more important the right, the higher degree of scrutiny[/quote]

The FIRST Amendment was initially the 3rd while the SECOND Amendment was originally the Fourth, etc. Judicial statements like "The FIRST Amendment protects more valuable rights because it's first are either a reflection of ignorance or, even worse in this case, judicial "political correctness." Can anyone show me a clause IN the Bill of Rights or later amendments that says they don't rank equally as restrictions on government? No, you can't.

The whole blather about "levels of scrutiny" is just an excuse to substitute the Judge's idea of what's best for that of the Constitution. And, of course, a way to limit the court's need to courageously stand up to Congress and momentary public opinion even on matters enumerated in the Bill of Rights.

As the anti-activists claim, the "law" is nothing other what 5 judges say it is today. The words of the Constitution (and even the concepts) are just silly putty for the court to play with.
4.13.2007 11:58am
Just Dropping By (mail):
Cornelian, I'm familiar with how rational basis has been applied (I got an A- and an A in my two semesters of ConLaw). My complaint is that courts do not actually apply the test. If the words of the test mean what they say, then one should expect laws to be struck down pursuant to rational basis review more often than they are. Courts routinely uphold laws that bear no conceivable relationship to any legitimate government purpose (see, e.g., Louisiana's floral arrangement license requirement: http://www.ij.org/economic_liberty/la_florists/index.html )
4.13.2007 12:12pm
BruceM (mail) (www):
I think all laws should be subject to strict scrutiny, and should be presumed to be unconstitutional (screw Carolene Productss footnote 4). In a true limited government, there are very few laws the legislature can pass without exceeding its authority. If a law does not achieve a compelling purpose and is not tailored as narrowly as possible to achieve that purpose, then why should it be permitted? Why was it passed in the first place? The government should be able to justify all of its laws beyond saying "it protects the children" or "it improves commerce."
4.13.2007 12:41pm
Phantom:
The whole blather about "levels of scrutiny" is just an excuse to substitute the Judge's idea of what's best for that of the Constitution. And, of course, a way to limit the court's need to courageously stand up to Congress and momentary public opinion even on matters enumerated in the Bill of Rights.

So, let's see here. Judges routinely strike down Constitutional laws because they don't agree with them, except when they're upholding Unconstitutional laws because Congress and public opinion favor them?

This is a load of hokum.

In my experience working with an Appellate Court, there are often times when the individual judges I worked with felt that a law was poorly conceived or a result was unfortunate. Of course, they also felt that the results they reached were required by existing precedent. Accordingly, they did what they knew the law required, rather than what made them feel best.

And sometimes, although the thought they were applying the law correctly, they were reversed by the Supreme Court.

At the end of the day, it wasn't because the Appellate Court was being activist, or the Supreme Court was being activist, it was because the two courts differed on the interpretation of language from a prior case. And while in many cases, I'm certain that the Supreme Court got it wrong, I know there are other cases where our court missed the boat.

Maybe if you were to spend some time talking with judges about how they do their jobs, you'd understand that at times, reasonable people can have legitimate differences of opinion about the interpretation of a case or a statute.

--PTM
4.13.2007 12:50pm
Duffy Pratt (mail):

Cases can't be decided simply by paying "close attention to the facts." Judges also need to know what facts to look for and what their legal significance is. To answer those questions, they must have rules - especially in a complex legal system that must decide tens of thousands of cases each year in at least a reasonably coherent and consistent way.


The Constitution supplies the rule when the case is one under the equal protection clause. I will agree that Judges need to supply their reasons, and those reasons will hinge upon their interpretation of the clause. I think there's a difference between an interpretation and a "rule." Rules look much more like legislation. But then, I think the whole thing went askew when Marshall stopped having every judge speak for himself and instead instituted the idea of "Opinions of the Court."
4.13.2007 1:33pm
Clayton E. Cramer (mail) (www):

The 14th amendment is an enumerated right, and it provides for "equal protection of the laws" without defining any of those terms, and with no indication in the text that its scope is limited to race, gender, age, nationality or anything else.

So how would you decide whether a particular statute violates the 14th Amendment?
Look to see what the authors and opponents of the 14th Amendment believed that it meant. The one thing that it is clear that it did NOT mean was homosexuality. It was a felony in every state at the time.

The courts heard a number of equal protection challenges based on sex in the years after the 14th Amendment was adopted, and they consistently held that laws that discriminated based on sex were not violations. No surprise; women didn't have the vote, or most other legal rights, and there is no indication that either proponents or opponents of the 14th Amendment believed that it would change that situation.

On the other hand, both proponents and opponents of the 14th Amendment believed that the privileges and immunities clause would impose the first eight amendments onto the states--and the right to keep and bear arms was regularly given as an example. Yet the same liberals who believe that it guarantees a right to homosexual sex and same-sex marriage refuse to admit that something explicitly stated as a right the 14th Amendment would protect is the case. A right that was never explicitly described--and that the state of the laws would strongly suggest was NOT protected--is hiding in there, while a right that was explicitly discussed is not protected.

This is why I can't respect liberals. All their talk about a living breathing constitution is just rationalizations for using their control of the judiciary to impose what they want.
4.13.2007 3:10pm
Clayton E. Cramer (mail) (www):

I'm curious when this "scrutiny bleed" started occuring. The "shouting fire in a theater" can be punished because it reflects a compelling government interest in health and safety, but I don't remember Holmes (?) saying that the punishing had satisfied some level of scrutiny.
And you know what the case was that Holmes used that analogy to justify upholding a law? Socialists distributing anti-draft literature. This alone should cause liberals to be embarrassed (if that is even possible).
4.13.2007 3:14pm
logicnazi (mail) (www):
Reader and others advancing this tired old line about activist judges: What is it that you think the constitution clearly says about the role of judges? Can you point to me where it says in the constitution that judges should all use interpretive methodology X?

Our constitution quite explicitly adopted a co-equal judiciary. They could have easily chosen to make the judiciary inferior to the executive and legislative branches, switched us to a civil law system, explicitly rejected the judicial review that we know some framers assumed, or written the constitution in excruciatingly precise detail so little interpretation would be needed. Instead the framers choose to make the judicial branch a co-equal branch of government and write a constitution sufficiently vague and metaphorical (writing is clear 1st amendment 'speech') that justices would be forced to generate interpretive precedent to give our country a firm legal foundation.

In fact any plausible interpretation of the original meaning/intent of the constitution must conclude that the constitution expects judges to behave like the common law judges the colonists were familiar with. In particular since common law judges create, expand and extend the law. It isn't even coherent to claim that judges should just interpret the constitution as written instead of relying on precedent and tests because that is exactly what the constitution expects them to do
4.13.2007 3:18pm
Clayton E. Cramer (mail) (www):
Consistency--that's what I want. It is certainly true that "rational basis," until quite recently, meant judicial deference. You had to have some truly absurd situation before the Court would decide that the legislature had no rational basis for a law. No surprise: legislators aren't as dumb as they look, and it is not difficult to come up with some rationalization (if not rational basis) for why law A is necessary to perform public purpose B.

Not every law is rational (far from it), but once you start second guessing legislatures, you are destroying the principle of representative government. If a law is clearly in violation of the Constitution, fine, strike it down. But simple disapproval of what the majority or its representatives passed is simply a majority of nine lawyers deciding that they know better than what a majority of 150 legislators (or a majority of the voters of Colorado) decided.

If liberals really insisted on the high standard used to strike down laws such as in Romer and Lawrence, they would be willing to strike down gobs of other laws as well. Most gun control laws, for example, would never survive these high standards of proof. (Indeed, most of them don't survive even low standards of efficacy.) The abusive discretion with which some states still issued concealed handgun permits (or even, as in New York and Massachusetts, permits to own a gun) would never survive such demanding standards. Yet liberals are quite happy to allow such laws to remain on the books.
4.13.2007 3:22pm
Some Law Student (mail):
Clayton Cramer said:


Look to see what the authors and opponents of the 14th Amendment believed that it meant. The one thing that it is clear that it did NOT mean was homosexuality. It was a felony in every state at the time.


If this is the method of constitutional interpretation you like, feel free to interpret the commerce clause to include only those things which were commerce at the end of the 18th century, as Clarence Thomas has proposed. While we can debate about what government should and should not regulate, your method of interpretation would effectively cut off the federal government's ability to do anything related to our modern economy.

Or, we can give our Founding Fathers credit for creating a document that could survive over two centuries by looking into the future and not completely hamstringing the government. One would think after the failed Articles of Confederation, that they had enough foresight to do that. And, of course, how does one detect that "real meaning" given by every representative, senator, and state intended to vote into existence by voting for the 14th Amendment?
4.13.2007 3:44pm
Some Law Student (mail):

Not every law is rational (far from it), but once you start second guessing legislatures, you are destroying the principle of representative government. If a law is clearly in violation of the Constitution, fine, strike it down. But simple disapproval of what the majority or its representatives passed is simply a majority of nine lawyers deciding that they know better than what a majority of 150 legislators (or a majority of the voters of Colorado) decided.


But isn't preventing the majority from destroying the rights of the minority part of the design of our system?

Let's say that the "majority" decides to require all Muslims to register with the government. Forcing people to register doesn't "prohibit" Muslims from practicing their religion in any way; it just allows the government to know who and where they are. Such a law has a "rational basis" because of Islamic terrorism.

The Court has gone down this road before in respecting the rights of the majority over a possible constitutional violation. It's called Korematsu.

Or, do you also believe that Brown v. Board of Education was wrongly decided because a majority of the southern state populations had voted for segregationist policies? I have had one Con Law professor -- who clearly agreed with the outcome and is known to espouse moderate-conservative views -- say that the case was the result of an "activist court." To require desegregation, the Court needed to re-interpret the 14th Amendment. Do you feel that its decision was wrong?

And don't get me started on the most counter-majoritarian scheme we have running in our country: You can get elected president by losing the popular vote.

Just perhaps our founding fathers desired to limit the power of the majority?
4.13.2007 4:04pm
Ramza:

I'm curious when this "scrutiny bleed" started occuring. The "shouting fire in a theater" can be punished because it reflects a compelling government interest in health and safety, but I don't remember Holmes (?) saying that the punishing had satisfied some level of scrutiny. When did the Court start easing limitations on government powers based on "scrutiny"? The 1940s, 50s, 60s, later?

United States v. Carolene Products Co. 1938 (the famous footnote four) introduces rational basis review seperating it from other forms of review (strict scrutiny). Rational basis had existed before that (for example the means test in McCulloch v. Maryland in 1819) but this was the real first "tiering" of the levels of scrutiny.

Korematsu v. United States 1944 (the japanaesse interment camp case) is the first case that "really" applied strict scrutiny, in this case strict scrutiny with race..
4.13.2007 4:32pm
Ramza:
Forgot to mention while US vs Carolene introduce the separation of Rational Basis and Strict Scrutiny it didn't yet "coined" the terms just the definition of rational basis.
4.13.2007 4:34pm
Ramza:

I think all laws should be subject to strict scrutiny, and should be presumed to be unconstitutional (screw Carolene Productss footnote 4). In a true limited government, there are very few laws the legislature can pass without exceeding its authority. If a law does not achieve a compelling purpose and is not tailored as narrowly as possible to achieve that purpose, then why should it be permitted? Why was it passed in the first place? The government should be able to justify all of its laws beyond saying "it protects the children" or "it improves commerce."


I find this to go to far (applying strict scrutiny, now applying something higher than current rational basis I agree with). Instead a simpler and a more likely action to occurthat is more likely to happen is the House and Senate rules change such that, all legislation is required to have a part of its text explaining which parts of the constitution enables the congress to do this, what state interests the law is furthering and why the government feels it is necessary.

So minor Republican I can't remember which (he isn't in the high party leadership of the House/Senate) was trying to do that a few years ago.
4.13.2007 4:35pm
justanotherguy (mail):
I find it unusual to link the current Cout's use of scrutiny to the original reasons for the constitution in a libertarian blog.

Something about limiting government's powers to those specifically ennumerated and ensuring the viability of the creator granted inalienable rights of the individual come to mind... something that has nothing to do with modern jurisprudence about the modern forms of government we have inflicted on ourselves.
4.13.2007 4:41pm
Brian K (mail):
Clayton says: "Consistency--that's what I want."

HAHAHAHAHA...that's not what you want at all. as the rest of your post makes clear, you want judges to rule the way YOU want them too. that is a very good reason why they are the judge and you are not.
4.13.2007 6:49pm
BobNSF (mail):
Careful, Brian K! Clayton might run and get his musket.
4.13.2007 8:57pm
logicnazi (mail) (www):
I think the best way to view the rational basis test and similar tests is not as formal tests but as vague standards for where you should start when analyzing those sorts of law. The decision in Romer v. Evans as much as comes out and admits that it isn't really applying the rational basis test. The justices did not merely contemplate abstractly whether or not the law had a rational relation to legitimate government ends. They also considered the seriousness of denying people the deeply important right to seek legislative relief for their grievances.

The problem here is really the name test. In Romer v. Evans and most other rational basis (or strict scrutiny) cases I have read the judges are fairly upfront about considering the harms of the statute and it's relation to our moral and constitutional ideals even after concluding that the rational basis test applies. If the rational basis test was merely a matter of determining whether the government was rationally pursuing a legitimate end then considerations like the unpalatability of singling out gays and restricting their ability to receive legislative redress simply wouldn't be relevant.

Conservative justices do this just as much as liberal justices. In fact they must since the rational basis test doesn't even make sense. While it is supposed to be a way to evaluate the constitutionality of a law it is really a way to evaluate a particular description of a law. I mean suppose we repeal the laws on murder and then pass one law about murder that applies to everyone who is straight and another that applies just to gays that punish them twice as harshly for the same crime. Whether or not this passes the rational basis test depends entirely on whether you characterize it as a law that makes sure gays can't get away with murder or a law that doubles the penalty for gays. Obviously in this case we want to view it as a law that doubles the penalty but that's just a roundabout way to inject our feelings about the law into the standard.

In effect the rational basis test requires the judge to compare the law in question with some other situation. Clearly the situation can't be the ideal law since then almost every law would fall rational basis review but neither can it be compared to the world without any law since then we run into (more reasonable) situations like the double penalty for gays example. This means the test can never hope to be a test. Rather it is just a heuristic the judges use that tells them what attitude to start with when they engage in the standard free form common law consideration.

Clayton:

A living constitution theory and the belief that one can allow policy judgements to influence your interpretation is just as consistent as textualism. It is much more consistent than Scalia's weak kneed textualism. After all the approach that the constitution really requires whatever the original public meaning was isn't even close to coherent to the idea that we can override that meaning when they really really don't like it. Either he should just come out and admit that there is no theoretical problem with considering the policy implications or he should practice what he preaches (like Thomas) and bite the bullet even when he doesn't like the result.

Consistency on it's own does nothing to decide between the liberal and conservative approaches to judging that you seem to care about.

I'm all for demanding more consistency in judging. One shouldn't pretend to be applying a principled test when you are really slipping in your policy preferences. Yes, liberal justices do this about gun control and it pisses me off. Just like it pisses me off when conservative justices do it. For instance compare Scalia's reasoning in Raich with that in Gonzales v. Oregon.
4.14.2007 5:21pm
Duffy Pratt (mail):
The other problem with the rational basis test is that it doesn't say by what yardstick a court should measure the legitimacy of a governmental interest. If it were by the Constitution, then there would be no need for the test. Instead, it allows judges to say what exercises of government power they think are "legitimate" and which ones are not. Justice Marshall left just this sort of inquiry up to Congress, at least under the "necessary and proper" clause.

The rational basis test gives courts an escape clause to strike down things that it thinks are really bad, but are not otherwise unconstitutional. By contrast, the strict scrutiny test allows a court to uphold laws that are patently unconstitutions, if the court thinks the ends are important enough. As a result, both standards are evil, though they may be necessary evils.
4.15.2007 12:52am
ReaderY:
Almost any law can be interpreted as an effort to "get" a group of people. The Civil Rights Laws could be interpreted as an effort to "get" racists, for example. One can always assert that the stated government reason is pretextual and the real reason is that the government just doesn't like them, for reasons "I cannot tell".

The difficulty is when the court's view of whether a state interest is "legitimate" is based on nothing more than their own opinion. At the very least, such decisions ought to be near-unanimous. If a signicant fraction of the Court believes that a law is rationally related to a legitimate state interest, a bare majority saying otherwise is an obvious example of naked politics -- the majority is indeed saying that the minority is irrational.
4.15.2007 1:43am
taney71:
Didn't Scalia make this argument in his dissenting opinion in Lawrence v. Texas? I seem to remember him questioning Kennedy's new use of rational basis review. Am I correct?
4.16.2007 1:05pm