Active Rationality in Judicial Review
![handle is hein.journals/mnlr64 and id is 485 raw text is: Active Rationality in Judicial Review
Richard Delgado*
The requirement that laws be rationall-that they make
* Professor of Law, University of California at Los Angeles. The author
gratefully acknowledges the contributions of the many individuals who read
drafts of this Article, who offered insights, comments, or criticism, or who sim-
ply encouraged him to think more deeply about the idea of rationality: Robert
Aronson, Scott Bice, Richard Cleva, Theodore Eisenberg, Kenneth Karst, Mar-
garet Radin, Neal Roberts, Michael Shapiro, Steve Shiffrin, Catherine Smith,
and Stephen Yeazell. I am also indebted to my research assistants, Barbara
Biles and Bud Zerboni, for their work in the early stages of the Article's devel-
opment.
1. The rationality requirement is most often identified with the doctrine
of substantive due process. This doctrine commands that a law bear a rational
relation to a constitutionally permissible objective [and that the law produce]
effects that advance, rather than retard or have no bearing on, the attainment
of the objective. P. BREST, PROCESSES OF CONSTrTUTIONAL DECISIONMAKING
1004 (1975). See Kelley v. Johnson, 425 U.S. 238, 244 (1976) (due process clause
affords not only a procedural guarantee against the deprivation of 'liberty,' but
likewise protects substantive aspects of liberty against unconstitutional restric-
tions by the State). Judicial consideration of the rationality of legislative clas-
sifications is central to equal protection analysis as well. See, e.g., Mathews v.
De Castro, 429 U.S. 181, 185 (1976) (equal protection clause requires invalida-
tion of classification that is clearly wrong, a display of arbitrary power, not an
exercise of judgment); McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (courts
must reach and determine the question whether the classifications drawn in a
statute are reasonable in light of its purpose). See also L. TRIBE, AMERICAN
CONSTITUTONAL LAW § 16-2, at 994 (1978) (The Supreme Court, from its earli-
est examination of socioeconomic regulation, has considered that equal protec-
tion demands reasonableness in legislative and administrative
classifications.). In addition, the two primary tests for cruel and unusual pun-
ishment under the eighth amendment embody rationality requirements. The
excessiveness test prohibits forms of punishment that serve no penal purpose
more effectively than less severe punishment, see Furman v. Georgia, 408 U.S.
238, 279-80 (1972) (Brennan, J., concurring); Workman v. Commonwealth, 429
S.W.2d 374, 378 (Ky. 1968), while the proportionality test prohibits punishments
that are grossly disproportionate to the gravity of the crime, see Weems v.
United States, 217 U.S. 349, 367, 371 (1910); In re Lynch, 8 Cal. 3d 410, 421-23, 503
P.2d 921, 927-29, 105 Cal. Rptr. 217, 223-25 (1973). Courts also have questioned
the rationality of certain irrebuttable statutory presumptions. See, e.g., Cleve-
land Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Stanley v. Illinois, 405 U.S. 645
(1972). See generally Gunther, In Search of Evolving Doctrine on a Changing
Court: A Model for a Newer Equal Protection, 86 HARv. L. REV. 1 (1972).
In the cases of both substantive due process and equal protection, the ra-
tionality requirement controls regardless of whether the level of scrutiny em-
ployed by the court is that of deferential rational basis review, see, e.g., United
States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938); Williamson v. Lee Opti-
cal, Inc., 348 U.S. 483, 491 (1955); L. TRIBE, supra, § 16-3, at 996 (deferential test](ViewImageLocal?handle=hein.journals/mnlr64&div=24&collection=&method=preview&ext=.png&size=3)
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