After the turn of 1937, the Court stopped second-guessing economic legislation. That change produced a standard of review that now applies to most laws challenged under the Due Process and Equal Protection Clauses: rational basis review. It is the bottom tier of a three-tier framework you will use throughout Constitutional Law II.
Why it works
Why so deferential? Courts are not elected and are poorly placed to weigh economic and social policy. The Lochner era (see Constitutional Law II) showed what happens when judges strike down economic laws they find unwise. Rational basis leaves those choices to legislatures, which voters can change. Footnote four explains when that trust breaks down: when the political process itself is blocked, or when a group cannot protect itself through it, closer review makes sense.
Key idea
Most laws get rational basis review: a law is upheld if it is rationally related to a legitimate government interest. Any conceivable legitimate reason will do, and the challenger must negate every conceivable basis (Williamson v. Lee Optical, 1955). Carolene Products (1938) and its footnote four suggested closer review for some laws.
Worked example: Rational basis in action
A city bans food trucks within 300 feet of restaurants. A food truck owner says the law only protects restaurants from competition. Apply rational basis.
- Is there a legitimate interest? Conceivable ones: traffic and pedestrian safety near busy restaurants, reducing congestion, sanitation.
- Is the law rationally related to it? Keeping trucks away from crowded areas plausibly reduces congestion.
- The city need not prove these were its actual reasons; the owner must negate every conceivable one.
Answer: Likely upheld under federal rational basis review, though the owner may argue that bare economic protectionism is not legitimate. (State constitutions sometimes require more.)
Worked example: Rational basis "with bite"
In a few cases the Court struck down laws under rational basis. What do they have in common?
- City of Cleburne v. Cleburne Living Center (1985): a city denied a permit for a group home for people with intellectual disabilities; the Court found the denial rested on irrational prejudice.
- Romer v. Evans (1996): a state constitutional amendment barring local protections for gay people was found to lack any rational relation to a legitimate purpose.
- In both, the Court found the law's real basis was animus toward a group, and a bare desire to harm a group is not a legitimate interest.
Answer: Animus. Scholars call this "rational basis with bite"; the Court has not named it a separate tier.
Common mistake
Thinking the government must prove its actual reason under rational basis. Any conceivable legitimate reason will do, even one the legislature never stated, and the burden is on the challenger. Check: can you imagine any legitimate reason the law might serve? If so, it almost always survives.
This is an educational course, not legal advice.