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Rationaliy is dead! Long live rationality! Saving rational basis review 35
7 Conclusion
Despite the comparative detail of this test – it clearly lacks the easy-torecite
brevity of the original – it leaves many important questions
unanswered. What is a ‘differentiation’? Even a seemingly universal law
such as ‘theft is a criminal offence’ can be viewed as a differentiation
between those who steal and those who do not, between rich and poor,
between kleptomaniacs and those of us lucky enough not to have those
urges. It also does not tell us exactly what sort of evidence would be
needed to establish a nefarious subjective motive. Are statements in the
legislative record enough? If so, what percentage of statements and by
whom? Or must the illegitimate purpose appear in the statute itself? The test
fails to answer at what time the connection between law and purpose must
be made. Must it have been rational at the time the law was enacted, or the
time the challenge was brought? Advances in empirical research or changes
in social circumstances may alter the answer between those two points in
time.
These are just some of the questions that I leave unanswered, partly
for reasons of space, and partly because some of these problems do not
admit of clear statement and are better solved through application in
particular cases. I see the role of my proposed construction not as
answering all the difficulties that inevitably arise in rationality inquiries. Its
purpose is to structure the inquiry in a way that saves the constitutional
requirement of rational state action from irrelevance, while at the same
time guiding courts away from substituting their judgment for that of the
legislature. Readers can decide for themselves whether my means are
‘rationally connected’ to my end ...