If you’ve ever researched constitutional rights in the United States, you’ve likely encountered the “rational basis” test. Used to evaluate the constitutionality of many laws, the test asks whether there is a rational basis on which the legislature could have thought that the law would serve a legitimate state interest. This is an extremely low bar for legislatures to clear, and it’s long both been a laughingstock of constitutional law and a method for judges to wash their hands of their Article III responsibilities. Under the most extreme—but frequently articulated—version of the test, the government literally cannot lose, however outrageous its actions. Sometimes, though, courts express more moderate versions and find some abuses of power to be unconstitutional. This unbalanced and unpredictable state of affairs has persisted for close to a century.
With the rest of constitutional law in flux, to put it mildly—with recent doctrine-breaking cases such as Dobbs v. Jackson Women’s Health Organization (“fundamental rights”), New York State Rifle & Pistol Association v. Bruen (gun rights) and Cedar Point Nursery v. Hassid (property rights)—it’s worth asking if the rational basis test might be about to change too. Could the Supreme Court finally make the test more truly rational, or are we doomed to live under its irrational guidance for another hundred years? At the least, the Court should uphold a version of the rational basis test that is truly reasonable and actually limits the government’s infringement of individual liberties.
More Rights Than Powers
“Few and defined” is how many judges view the rights that the Constitution protects, but James Madison used the phrase to describe not rights but the powers the Constitution bestowed on the federal government. The Constitution, then not yet adopted (let alone amended), had few direct protections of individual rights. It didn’t need them, argued Madison and Alexander Hamilton, because the new national government’s powers were so circumscribed. The states, by contrast, never were understood to have “few and defined” powers, but after the Civil War Congress wisely decided this reality was dangerous and needed curtailment, which it provided in the form of the Fourteenth Amendment.
After that, on paper at least, the Constitution named a bevy of explicit rights—free speech, religious liberty, etc.—and a number of more open-ended rights, such as due process of law, equal protection, “privileges or immunities of citizens of the United States” and, in the Ninth Amendment, “other [rights] retained by the People.”
We might disagree about what all these protections of rights mean, but no one can argue they are “few and defined”—except the government, which over the years has done so repeatedly. Thus, American constitutional history has been a constant struggle over how strictly to enforce these many rights protections.
Justice Through Reason
One way to protect constitutional rights, whether explicit or implicit, is to inject an idea of reasonableness. That is, a law should have a legitimate public purpose and should not be arbitrary. And when courts seriously consider if a law is constitutional, this is often what they do: inquire into the reason the law was enacted and—if those goals are permissible—how it achieves them in light of actual facts and the burden inflicted on the people. This isn’t a “strict” enforcement of the Constitution, but it also doesn’t ignore the Constitution completely. It’s a method that to some extent already existed under the common law: applying principles to facts and inquiring into reasonableness.
Cases that apply this reasonableness method often come out differently, however, depending on how much deference is given to the government. Take two cases decided in 1905 within just a couple months of each other, Lochner v. New York and Jacobson v. Massachusetts. The former concerned a law restricting bakers’ working hours, the latter a compulsory smallpox vaccination law. Both laws were ostensibly enacted for public health safety reasons. The government lost when it came to bakers’ hours but won on vaccinations, though in both cases the Supreme Court used a reasonableness standard. In Lochner, the court said it was examining whether the law was “an unreasonable, unnecessary and arbitrary interference” with individual liberty, whereas in Jacobson it stated the law would be unconstitutional if it were “so arbitrary and oppressive . . . as to justify the interference of the courts to prevent wrong and oppression.” Amazingly from today’s vantage point, even though the two cases came to opposite conclusions, three justices voted with the majority in both.
This reasonableness approach has also been applied to cases involving a specifically enumerated right. For example, the 1919 Schenck v. United States case dealt with the First Amendment’s protection of free speech. Justice Holmes was (rightly) much maligned in upholding a conviction under the Espionage Act for simple leafletting against the draft. But even he acknowledged that the question depended on the facts, and the outcome was based on “proximity and degree.” That “proximity and degree” expanded over time when it came to free speech, but it grew from the core idea of reasonableness. Now, the reasonableness standard could definitely be abused by mouthing the word “reasonable” but not applying the concept, such as when the Court upheld Jim Crow laws, but real reasonableness was the purported goal.
Yet, as the Supreme Court was faced with more and more governmental intervention into individual liberty—especially when it came to the economy—the reasonableness standard gave way. Nominal “reasonableness” remained, but it was a much less reasonable reasonableness. At the same time, however, some constitutional rights were elevated, receiving a more explicitly stringent protection. A primary reason for this shift was theoretically to preserve the separation of powers and stop judges from “legislating” their preferences. In the end, though, it allowed legislators and political insiders to push ever more unreasonable legislation, knowing that it would survive as long as it avoided the few rights that enjoyed heightened protections.
This new paradigm is most explicit in the 1938 case United States v. Carolene Products. The Supreme Court stated that for most laws, courts should assume that “[they rest] upon some rational basis” that justifies their constitutionality. This language sounds harmless enough and not too far removed from the tests in Lochner and Jacobson. But the resulting history has proved otherwise. And in the 1955 case Williamson v. Lee Optical, the court dispelled all doubt that this “rational basis” standard was something like the old reasonableness method. In upholding a transparently protectionist Oklahoma law requiring everyone who replaces a pair of eyeglasses to have a prescription, the court said it is enough that the legislature “might” have thought that the law was rational, even if it in fact had only nefarious motives.
After Lee Optical, the rational basis test exploded in popularity, with case after case in the Supreme Court and lower courts upholding all kinds of laws affecting all kinds of liberties. The most extreme articulation of it was in 1993 with FCC v. Beach Communications. Writing for the court, Justice Thomas asserted that “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature” and that “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” In other words, it doesn’t matter what the legislature actually wanted to do or what the actual facts are—just that one could imagine a permissible purpose and one could suppose there are facts justifying the law.
With the test creating such a low bar, you might wonder if it’s really a “test” at all—and in some cases you might be right. For example, one court upheld a licensing scheme for florists on the supposition (for which there was absolutely no evidence) that licensed florists might be better at protecting the public from infected dirt. Another upheld a Pennsylvania law that forbade food but not beverages at funeral homes because (again, with no evidence) perhaps embalmed bodies could infect hors d’oeuvres but not sodas.
Further, although originally designed for cases not involving a specifically enumerated right—such as the economic liberties at issue in Lee Optical—the rational basis test has even been used for laws limiting rights explicitly listed in the Bill of Rights. For example, in the infamous Kelo v. City of New London, the Supreme Court asked whether potentially broadening the tax base by taking private property from one owner and giving it to another violated the public use clause of the Fifth Amendment. And the court said that in answering the question, the city merely needed to show that its reasons for the taking were “not irrational.”
And yet, Lee Optical, Beach Communications and their offspring are not the whole story. In fact, the Supreme Court has concluded that quite a few laws actually violate the rational basis test. This divergence in outcomes is often explained by arguing that some of these latter cases concerned restrictions on gays and lesbians or other discriminated-against groups such as the mentally handicapped. But others really did involve just mundane arbitrary laws. For example, in 1989 in Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, a West Virginia county taxed some properties based on their recent sales price but did not update assessments of other properties that had not recently been sold, resulting in wildly disproportionate tax bills. The Supreme Court found this not “rationally related” to the law’s purported purpose of bureaucratic convenience. And it didn’t cast about for some other made-up reason or made-up facts.
This divergence has happened in the lower courts as well. For example, colleagues at my law firm have successfully challenged laws requiring a funeral director’s license—which entails training to embalm bodies—simply to sell caskets. Other courts have found mismatched licensing requirements to be unconstitutional where the training required has nothing to do with the skill the entrepreneurs want to offer the public, or where exceptions to the law show that its health and safety justifications are a mirage. In one case, a court found unconstitutional laws requiring a license for pest control of rats and pigeons but not of bats and squirrels. In two others, courts found unconstitutional laws that required African-style hair braiders to get conventional cosmetology licenses when the training for those licenses did not involve any hair braiding training. Yet, in another sign of divergence, a different federal court disagreed with both, ruling this extreme credentialism perfectly constitutional.
This divergence, of course, results in a game of jackpot justice in rational basis cases. If the Beach Communications version is applied, you’re most likely going to lose in your attempt to challenge a law. If you draw the Allegheny approach, you still probably will lose—it’s still exceedingly permissive—but you have a chance because the old-fashioned idea of actual reasonableness is doing some work.
More Rationality for Rational Basis?
The Supreme Court has not commented much on the rational basis test in recent years, merely applying it at times and moving on. Last term, for instance, it upheld the exclusion of Puerto Rican residents from a form of Social Security disability benefits, with only one justice concluding that the law was irrational.
As I examined recently, however, in overturning Roe v. Wade the Supreme Court rejected abortion as a fundamental right and forewarned that any other fundamental rights would have to be “deeply rooted” in history and tradition. Now, that could lead to other rights—most prominently the right to earn a living—being included in the “fundamental” basket. But it could also mean the exclusion of rights that deserve protection, or even a combination of both. This would likely mean more litigation under the rational basis test. Rights subjected to a higher standard than rational basis would be even more “few and defined.”
Further, the U.S. just experienced a great convulsion of rational basis cases because of the COVID-19 pandemic. Challenges to pandemic shutdowns of businesses were by and large rational basis claims, and they generally fared quite poorly. However, as I have written elsewhere, those challenges were a bit unusual, as the government’s reason for its extreme behavior actually was directed toward a real problem. Often, as we now know, those extreme measures did not address that problem very well, but the shutdowns and other restrictions were not generally initiated for illegitimate reasons, such as protectionism or animus toward particular people or businesses.
Thus, two things are now converging: (1) The Supreme Court may be pushing more litigation into the rational basis zone, and (2) pandemic litigation—where there really was a public health and safety threat—is furnishing a contrast with run-of-the-mill litigation where there is no threat. Rational basis is more real, but at the same time it applies to laws that appear less important than they used to before COVID.
As a result, it’s possible that the more “rational” version of the test will grow in importance, while the too-broad Beach Communications articulation is cast into the dustbin of history and courts apply some modicum of reason in their rulings concerning a multitude of rights. How likely is this? It’s too early to tell. Until the Supreme Court sorts out which rational basis standard is correct, courts will continue to apply one or the other. That’s not exactly a rational way to protect constitutional rights.