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Rationaliy is dead! Long live rationality! Saving rational basis review 11
be brought to a screeching halt. However, the effect of requiring this
balance is that the test is necessarily influenced by judicial discretion and
ceases to be a formal, logical exercise.
To repeat, the test is: The differentiation is rationally connected to a
legitimate government purpose. The four parts of the test are:
(a) What is the differentiation or law at issue?
(b) What is the purpose it serves?
(c) Is that purpose legitimate?
(d) If so, is the differentiation connected to the purpose?
For reasons that I trust will become clear, I will consider these steps in more
or less reverse order.
4.1 Legitimacy 52
The first element of the test is to determine which purposes are ‘legitimate’.
In the traditional model of rational basis review this element operates as the
door to the formal rationality check made up by the remaining three parts.
However, as I explained earlier, that relationship can also be switched so
that the rationality check becomes a mechanism to determine which
purposes should be measured against the bar of legitimacy. Whether it
functions as a threshold or a final arbiter, extreme approaches to the
question of legitimacy pose perhaps the most blatant dangers to the validity
of rational basis review.
The first extreme occurs when a court accepts virtually any purpose as
legitimate. The decision of the Tenth Circuit in Powers v Harris offers a
powerful illustration of this problem. 53 The law in question required any
person who wished to sell caskets to meet a number of stringent criteria
including: completing sixty credit hours of specified undergraduate training; an
52
Price suggests a neat formula for this step: ‘A legal rule’s purpose is legitimate, under the
rationality principle, if and only if it is consistent with all other legal and constitutional
constraints, including the Bill of Rights and the Constitution’s “objective, normative value
system”.’ This position will ‘constrain ... judges to deciding only questions of law’ in
Woolman & Bilchitz (n 7 above) 47. As elegant as this structure is, I do not think it deals
with the difficulties I identify below. The purpose of a law can be framed at various levels
of abstraction, some of which will be legal while others will not. The structure also has
this effect: It incorporates into the rationality test the requirement that the state make
not only laws with constitutional effects, but always act with a constitutional purpose.
The extent to which purpose alone is a valid reason to invalidate a law is controversial in
the US and is largely unexplored in South Africa. Adding it to rationality review probably
causes more problems than it solves. In my view, starting from the point that rational
basis review is meant to prohibit ‘naked preferences’ – keeping in mind the various ways
purpose can be changed – is a better way to approach the problem of legitimacy. This is
perhaps an example of where my focus on equality leads me to a different viewpoint to
that observed through Price’s wider lens.
53 379 F 3d 1208 (10th Cir 2004).