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Rationaliy is dead! Long live rationality! Saving rational basis review 31
uncertainty by grounding the test not only in a substantive commitment to
abolish certain laws combined with a healthy respect for the separation of
powers, but also in a semi-procedural understanding of the role of courts in a
constitutional system. For those who have no claim under any other right,
rational basis is a means – a procedure – to air their grievances. The test has
fuzzy borders and general guidelines, but no bright lines or clear answers.
It also solves the transparency criticism by forcing the substantive and
empirical debates and the importance of the way the question is framed –
which has for so long gone on beneath the surface – out into the open. Judges
do not need to worry that they are exceeding their powers under the test if they
weigh empirical evidence, or note that the level at which the test is phrased
determines the outcome. Indeed, they are failing in their duties if they do not
engage in these questions. In the past, the rhetoric of rationality both permitted
and required that judges suppress the value judgments and empirical
evaluations that are inseparable from a meaningful inquiry into a law’s
rationality. Seeing rationality as focused on justification, on the contrary,
permits and requires judges to explain all the implicit judgments they were
previously required to hide. In the long run, this requires a shift not only in the
justifications and structure of the test, but also the discourse that surrounds the
test. The mere word ‘rationality’ inevitably tends to obscure the inner workings
of the test. In the future, we might do better to abandon the word altogether.
Justification brings the test closer to its already existing purposes:
outlawing prejudiced and irrational laws by stressing how uncertain those
terms are. It makes the inquiry meaningful by giving it a basis from which
to work: the ability of government to explain its actions.
I should make absolutely clear that I do not believe that changing the
rationale of the test or adopting the new structure I propose will remove
the discretion of judges or de-politicise the rationality inquiry. My point is
that those are inevitable parts of the rationality inquiry that are in conflict
with the supposed purposes and surrounding rhetoric of rationality. We
cannot defuse that conflict and save rationality by trying to make it a
mechanical test: that is an impossible goal. We can save it by re-imagining
rationality as a tool to force government to justify its laws. My approach
does not deny the substantive and discretionary elements of rationality
review, it embraces them. I do, however, believe that this shift, and the
detailed structure I propose, will, over time, make the application of the test
more predictable as the implicit judgments become explicit.
The immediately apparent danger of shifting the onus to government is
that it will place too great a burden on government and grant courts undue
license to interfere with the business of government. This is a well-founded
fear and is the reason why the discretion has been suppressed and denied for
so long. However, I think it is possible to structure the test in a way that
places an appropriate limit on courts.