Download this publication - PULP

Rationaliy is dead! Long live rationality! Saving rational basis review 27
purpose only in some conceivable way then all laws that identify a legitimate
purpose – which we have seen is always possible – will pass the test. This
standard fails to fulfill the requirement that a law must be connected to a
public end because the connection is determined by the ingenuity of
government and lawyers and the discretion of courts, not the effects of the
law; any law can be saved by dreaming up some purpose that it might
theoretically serve. It is only by raising this standard that rationality review
can become meaningful. But once the standard is raised to something like
‘a fair and substantial relation’, 129 the test affords judges too much power as
many – maybe even a majority of laws – might reasonably be said not to
‘substantially’ advance their purpose. Courts have not been able to identify a
mid-point that is both meaningful and restrained.
Fourthly, an element of the means-end test is the use of empirical
evidence. If courts refuse to engage it at all, then the test – no matter what
theoretical standard is employed – becomes an armchair game for lawyers
and judges. While the possibility that a law may further a purpose might be
deduced from ‘rational speculation’, 130 the extent to which the purpose is
advanced must rest on empirical facts. 131 Evaluative rationality – the
essence of rational basis review – only makes sense if courts are willing to
examine empirical facts. 132 But if the courts begin to evaluate the relative
worth of competing empirical claims or to make judgments where
empirical knowledge is uncertain, then we must ask: Why do we trust their
judgment in that task more than that of the legislators?
The discretion inherent in the application of the test creates two types of
problems. First, there is a massive gap between the rhetoric of courts which
emphasises the mechanical nature of the test, and the degree of discretion
courts in fact exercise. The lack of transparency is an evil in itself: Courts should
practise what they preach or, more precisely, preach what they practise. It also
reduces certainty. As the American experience demonstrates, courts can apply
variable levels of scrutiny while claiming to adhere to the same standard.
Moreover, it makes life difficult for litigants who cannot explicitly make some
of the arguments that would influence courts, because courts officially deem
those arguments irrelevant. Forcing those arguments into the subtext of
litigation serves nobody. This is not a criticism that is unique to rationality
review; it can and has been made about many areas of law, but it is especially
blatant in the rationality context. Justice Marshall has explicitly commented on
the discrepancy between word and deed, between rhetoric and reality:
129
Royster Guano (n 23 above) 415.
130 Beach Communications (n 20 above) 315.
131 See Bice (n 4 above) 13.
132
As above. (‘The formal elements of evaluation concern the logical pattern of the actor’s
beliefs, namely whether the actor believes that his behaviour will achieve his goals and
whether he believes that his actions will do so efficiently. The empirical elements of
evaluation cannot be satisfied formally; they must be satisfied by reference to an
objective standard outside the actor.’)