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The content and justification of rationality review 39
section 9(3) of the Constitution. 8 For example, differentiations on grounds
of sexual orientation, age, or HIV status need merely be rational in the
United States, 9 whereas South African courts assess whether they
constitute unfair discrimination. Some of the academic disapproval of
rational basis review in the United States may be partly motivated by the
relative ease with which such differentiations are upheld as constitutional,
because rational, in that country. In South Africa, by contrast, the broader
reach and higher standard of the prohibition on unfair discrimination
ensure that many of these differentiations will not survive constitutional
scrutiny, whether or not they satisfy the rationality principle. Accordingly,
rationality review arguably has costs in the United States that it does not
incur in South Africa. Secondly, the justification of rationality review
depends to a significant extent on the manner in which its evaluative and
vague elements are applied by judges in particular cases. But it is by no means
clear that since 1994 South African judges have applied the rationality
principle in a manner identical to US judges. Whatever the record of the US
courts may be, we need not accept Bishop’s claim that the South African
Constitutional Court is guilty of applying the rationality principle in an
inappropriate way. For these two reasons, we should be hesitant to tar
rationality review in both legal systems with the same critical brush.
Having explained the difference between the scope of my account of
rationality review and Bishop’s, I now outline the argument that follows.
Part 2 surveys the different contexts in which the rationality principle applies.
I then analyse its content, drawing attention to some of its characteristics –
in particular, the fact that its application often requires courts to make
discretionary judgments – which call for further explanation and
justification. Part 3 takes the first step by analysing the distinction between
reasonableness and rationality in constitutional law. It then explains the
court’s duty to respect, or not to ‘second-guess’, the political autonomy of the
executive and legislature, as well as the idea that judicial scrutiny can vary in
intensity. This part concludes by briefly considering the notion of
arbitrariness. Having explained the content of the rationality principle, I turn
to its justification. Part 4 advances some reasons for believing that rationality
review is justified in principle, relying prominently on the idea that its
discretionary character is part of its value. Part 5 argues that rationality review
is justified in practice, because the Constitutional Court has, on the whole,
applied the rationality principle sensibly. My ultimate conclusion, then, is
that rationality review does not need to be saved.
8
Sec 9(3) provides that ‘[t]he state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth’.
9 See, for a classic account, L Tribe American constitutional law (1988) ch 16.