No Such Thing: Litigating Under the Rational Basis Test
The original legal definition of insanity is the inability to tell right from wrong.1 So it is the first irony of the “rational” basis test that it is, according to that definition, insane. The word “basis” is likewise a misnomer, since the rational basis test is concerned not with the actual basis for challenged legislation, but with speculative and hypothetical purposes instead. Finally, the word “test” is inappropriate, at least insofar as it suggests some meaningful analytical framework to guide judicial decision-making, because the rational basis test is nothing more than a Magic Eight Ball that randomly generates different answers to key constitutional questions depending on who happens to be shaking it and with what level of vigor.
Mendacious as the rational basis test is in name, however, that is nothing compared to the intellectual dishonesty it engenders in actual litigation, where it produces a variety of bizarre phenomena that would never be tolerated in any other setting. These include the spectacle of judges simultaneously recognizing and refusing to protect fundamental constitutional rights; permitting government lawyers and witnesses to misrepresent—or at least disregard—material facts; prefer-ring conjecture over evidence; saddling plaintiffs with a burden of proof that is technically impossible to discharge; abandoning judicial neutrality; and blatant—but unacknowledged—misapplication of the test in select cases to achieve preferred outcomes.
