Rational basis review

Rational basis review tests whether the government's actions are "rationally related" to a "legitimate" government interest. The Supreme Court has never set forth standards for determining what constitutes a legitimate government interest. Under rational basis review, it is "entirely irrelevant" what end the government is actually seeking and statutes can be based on "rational speculation unsupported by evidence or empirical data". Rather, if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand rational basis review. Judges following the Supreme Court's instructions understand themselves to be "obligated to seek out other conceivable reasons for validating" challenged laws if the government is unable to justify its own policies.

History

The concept of rational basis review can be traced to an influential 1893 article, "The Origin and Scope of American Constitutional Law", by Harvard law professor James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is "so clear that it is not open to rational question". Justice Oliver Wendell Holmes Jr., a student of Thayer's, articulated a version of what would become rational basis review in his canonical dissent in Lochner v. New York, arguing that

the word 'liberty', in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

However, the court's extensive application of economic substantive due process during the years following Lochner meant that Holmes' proposed doctrine of judicial deference to state interest was not immediately adopted. It was not until Nebbia v. New York that the Court began to formally apply rational basis review, when it stated that "a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose". In United States v. Carolene Products Co. the Court in Footnote Four left open the possibility that laws that seem to be within "a specific prohibition of the Constitution", which restrict the political process, or which burden "discrete and insular minorities" might receive more exacting review. Today, such laws receive strict scrutiny, whereas laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review.

Under rational basis review, laws are presumed to be constitutional in deference to legislators.