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8 Chapter 1
another. Such an understanding as this focuses on the reasons or motives that
underlie classifications. 36
This rationale has been explicitly endorsed in both the US 37 and South
Africa. 38 In Justice Brennan’s words: ‘For if the constitutional conception of
“equal protection of the laws” means anything, it must at the very least
mean that a bare congressional desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.’ 39
These bases for rationality review only make sense within a model of
politics where ‘politics is “not the reconciling but the transcending of the
different interests of the society in the search for the single common
good”’. 40 This understanding of politics – known as the ‘public value’ or
‘social good’ model – contrasts with the alternative ‘public choice’ model
which assumes that the legislature is simply a ‘market-like arena’ in which
individuals and special interest groups trade with each other through
representatives to further their own private ends. There is no ‘public
interest’, no identifiable ‘social good’; there are only bargains struck
between those helped by legislation and those who are harmed. 41
Reviewing legislation for a rational basis only makes sense in the public
value model. Under the public choice regime, legislative decisions are
necessarily arational: ‘the legislature simply does what it does – means and
ends are merged’. 42
While the dual demand for rationality and impartiality clearly require
some standard, why is the rational basis standard the right one? The same
interests could be achieved, for example, by a balancing inquiry. The rational
basis test is justified as much by ensuring rational and impartial action as it is
by deference to the legislature. As the courts routinely note, 43 government
regulation necessarily results in some groups receiving more benefits than
others. If the courts required more than the most limited review of these run-ofthe-mill
differentiations, government would be brought to a standstill. In other
words, ‘the Court’s perception of the evil at which the equal protection clause
36
Sunstein (n 6 above) 128.
37 United States Department of Agriculture v Moreno 413 US 528 at 534 (1973); Romer v Evans
517 US 620 633 - 634 (1996).
38
Prinsloo (n 14 above) para 25, citing Sunstein ‘Naked preferences’ (n 35 above).
39 Moreno (n 37 above) 534.
40 Sunstein ‘Naked preferences’ (n 35 above) 1691 quoting G Wood The creation of the
American republic (1972) 58. See also F Michelman ‘Political markets and community
self-determination: Competing judicial models of local government legitimacy’ (1978)
53 Indiana LJ 145 148 - 157; Sunstein (n 6 above); Michelman (n 35 above).
41
Bice (n 4 above) 19 (footnotes omitted).
42 As above. But see Michelman (n 35 above) 33 (arguing that rationality is also
supported by an economic conception of the Constitution).
43
In the US see, eg, Romer (n 37 above) 631; Beach Communications (n 20 above) 315; Royster
Guano (n 23 above) 415. In South Africa, see Prinsloo (n 14 above) para 17 (‘If each and every
differentiation made in terms of the law amounted to unequal treatment … the courts could
be called upon to review the justifiability or fairness of just about the whole legislative
programme and almost all executive conduct’).