The Rational Basis Test Is Constitutional (and Desirable)
Erwin Chemerinsky, The Rational Basis Test Is Constitutional (and Desirable), 14 Geo. J.L. & Pub. Pol'y 401 (2016).
The rational basis test is not only constitutional but also desirable. Nothing in the Constitution requires more exacting scrutiny than rational basis review and deference to the government is often appropriate. This article makes three main points. First, balancing between individual freedoms and government interests is inevitable in constitutional law, and the rational basis test is a necessary and desirable way of doing so when deference to the government is appropriate. Second, the Court has basically gotten it right about when to apply the rational basis test — using it to analyze government economic regulations and social welfare legislation when there is no discrimination based on a suspect classification or infringement of a fundamental right. My final point acknowledges a flaw in the test, that as currently applied, is too deferential because it allows laws to be upheld based on a conceivable permissible purpose, and is not concerned with whether the law meaningfully advances the government’s goal. But a merely conceivable purpose should be insufficient to do so. There should have to be an actual legitimate purpose, and there should be a meaningful relationship between the means chosen and the ends sought to be achieved.
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