The purpose of this symposium is to discuss the constitutionality of the federal rational-basis test. But to do that, we need to also consider what the rational-basis test actually IS. As other participants in this symposium have noted, the rational-basis test is frequently in tension with itself. Many commentators simply characterize it as multiple tests, but in court and according to the Supreme Court, there is only one test. Accordingly, unlike the other participants, I here address it as a single test and try to give a framework for understanding it. (1)
Like a padded resume, there is a difference between what the rational-basis test says it is and what the test actually is. That difference plays out in the differences between cases describing the test and cases applying the test.
This essay will proceed as follows: In Part I, I will briefly discuss the history of the rational-basis test. Part II will cover the modern rational-basis test and the claims that courts make about it. Part III will look at the rational-basis test in practice--how courts actually apply it. Part IV will describe the rational-basis test in the trial court. Finally, Part V will ask whether the rational-basis test is constitutional.
I. HISTORY OF THE RATIONAL-BASIS TEST
The modern rational-basis test was invented in United States v. Carolene Products Co., (2) which officially divided rights into two categories: those that would receive meaningful protection from the courts and those that would be reviewed under a rational-basis standard. In Carolene Products, the Supreme Court upheld the Filled Milk Act of 1923 out of deference to Congress' determination that dairy products fortified with vegetable oil were unwholesome and could create consumer confusion. (3) The famous "footnote four" made it clear that certain rights (those "within a specific prohibition of the Constitution, such as those of the first ten Amendments" (4)) would receive real judicial scrutiny, while all others would be reviewed under the nascent rational-basis test.
Judicial deference reached a sort of peak in Williamson v. Lee Optical, (5) which involved an Oklahoma statute that permitted only licensed ophthalmologists and optometrists to fit eyeglasses to a person's face or to duplicate lenses, while in other states, opticians performed...
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