"Mere" Rationality in Constitutional Law: Judicial Review and Democratic Theory
California Law Review
The United States Supreme Court has long insisted, as a matter of constitutional doctrine, that legislative action must be rationally related to the accomplishment of some legitimate state purpose. This rationality requirement has been advanced as the most minimal of constitutional limitations on legislative action.' It has been variously phrased 2 and has appeared in several constitutional guises, most prominently as an elaboration of the due process and equal protection guarantees. . The
... rantees. . The usual disavowals are particularly necessary here because several of these people rather strenuously disagree with some of my conclusions. 1. This Article will not address the related issues of nonlegislative state action. In applying the rationality requirement, courts usually treat legislative and administrative action as equivalent. As a result, a number of the cases on which I will draw involved administrative rather than legislative policy decisions. I doubt the wisdom of conjoining the two doctrinally, see, e.g., Sandalow, Judicial Protection ofMinorities, 75 MICH. L. Ray. 1162Ray. (1977 [hereinafter cited as Sandalow II], but the present Article is meant to address solely issues of review of legislation. 2. Sometimes the Court speaks of "reasonableness," rather than "rationality." The Court also uses the words "arbitrary," "capricious," and "invidious" apparently as alternative formulations of the rationality requirement. This Article explores the theory and practice of the rationality requirement. Conclusions about whether the requirement is met in particular instances are so commonplace among those trained in law that it is easy to assume that its abstract meaning is well and commonly understood. Most attention is thus directed at what is assumed to be the more difficult question of whether some more stringent standard is required to test the constitutionality of the legislative action under review. Courts and particularly scholars have been pausing longer of late to question the assumption of a common and clear understanding of the rationality requirement.' As the elements of that superficially simple doctrine are more rigorously probed, it becomes increasingly clear that the rationality requirement masks-and in many ways exaggerates-the fundamental problems of reconciling "democracy" with the role of the courts in constitutional review of legislation, problems that are usually associated with the more stringent standard question.