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2 Chapter 1
continue to rely on it and the courts refuse to alter the test to answer their
critics. This essay is one more in a long lineage of attempts to figure out
what is wrong with rational basis review and propose a way forward.
Although I rely extensively on earlier work in the area, I have taken a
different tack. Firstly, I offer a comparative perspective that looks at the
law in both the United States and South Africa. The formulation of the tests
and judicial attitudes toward their enforcement are virtually identical in
both countries. Yet the US has a much longer history of cases and
scholarship that address the problem that can teach South African courts as
much from its failures as its successes. South Africa also makes an
interesting comparison from the US point of view, because it illustrates how
even a system without signs of the extreme excesses of US jurisprudence
is in need of saving and may offer some hints on what the route to salvation
might be. 7
Secondly, my goal is not to identify all the inconsistencies and
absurdities of rational basis theory 8 or practice. 9 Instead I want to show
how the test fails to do what it is meant to do and to suggest that a re-think
of how we justify and conceptualise the test is required. I begin in part 2 by
specifying the form of the test and noting some of the major differences
between US and South African jurisprudence. Part 3 examines the
justifications for rational basis review and deduces what type of test those
justifications envisage and what types of laws they require to be struck
down. The heart of my analysis comes in part 4 where I describe how the
rational basis test is incapable of uniform or routine application; its outcomes
cannot be neatly deduced from a formula but are almost entirely
dependent on the discretion of litigants, lawyers and, most importantly,
judges. Part 5 demonstrates how the analysis in part 4 unmoors the
rational basis test from its traditional justifications. Finally, in part 6,
I suggest an additional justification for the test that is compatible with the
7 In his excellent reply, Price notes that there is an important difference between equality
analysis in the two countries: many laws that are tested under rationality review in the
US will be tested under the more exacting unfair discrimination standard in South
Africa. A Price ‘The content and justification of rationality review’ in S Woolman &
D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the bench and the academy about
the South African Constitution (2012) 37. This is true and perhaps explains why rational
basis review has attracted much more attention and criticism in the US than in South
Africa. However, there is still a significant class of cases – differentiation on grounds not
listed in sec 9(3) or analogous grounds – that is subjected to rationality review in both
nations. Those are the primary subject of this paper. Price also notes that the criticisms
leveled at American courts’ treatment of rationality review cannot be uncritically
transposed to South Africa. Again he is correct. South African courts have, thus far,
been far more circumspect in their application and explication of rationality review than
their American counterparts. There are places in the paper where I unfairly lump all the
sins of one on both. If I could rewrite it, I would change that. However, I would argue,
and I would hope this paper demonstrates, that the way the test is structured and the
justifications offered in favour of it are virtually identical on both sides of the Atlantic.
8
See, eg, Note (n 2 above); Linde (n 2 above).
9 See, eg, Neily (n 1 above).