14 Geo. J.L. & Pub. Pol'y 401 (2016)
The Rational Basis Test Is Constitutional (and Desirable)

handle is hein.journals/geojlap14 and id is 412 raw text is: 



         The Rational Basis Test Is Constitutional
                            (and Desirable)


                            ERWIN CHEMERINSKY*
INTRODUCTION ............................................. 401

  I.  BALANCING IS INEVITABLE .................................             403

  II. RATIONAL BASIS REVIEW SHOULD BE USED FOR ECONOMIC AND
      SOCIAL WELFARE LAWS ................................... 405

III.  MAKING THE RATIONAL BEST TEST MEANINGFUL ................             410
      A.   The Inquiry as to the Government's Purpose ............          410

      B.   The Inquiry as to the Means ..........................           413
CONCLUSION ................................................ 416

                                 INTRODUCTION
  The Supreme Court got it right in its famous footnote four in United States v.
Carolene Products.' There, the Supreme Court articulated the idea that different
constitutional claims would be subjected to varying levels of review.2 The Court
explained that courts generally should presume that laws are constitutional.
However, a more searching judicial inquiry is appropriate when a law inter-
feres with individual rights, restricts the ability of the political process to repeal
undesirable legislation, or discriminates against discrete and insular minori-
ties.3 It is a framework of general judicial deference to the legislature but with
those particular matters distinguished for more intensive judicial review.
  Under the Carolene Products framework, the rational basis test is the mini-
mum level of review.4 Under equal protection, all classifications must at least
meet this level of review, though laws that draw certain kinds of classifications
must meet a higher standard. Likewise, laws where liberty or property are


  * Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law,
University of California, Irvine School of Law. I want to thank Laura Lively for her excellent research
assistance. I also am grateful to the participants at the symposium at Georgetown University Law
Center.  2016, Erwin Chemerinsky.
  1. 304 U.S. 144 (1938).
  2. See generally J.M. Balkin, The Footnote, 83 Nw. U. L. REv. 275, 282-93 (1989) (discussing
footnote four in Carolene Prods.).
  3. Carolene Prods. Co., 304 U.S. at 152 n.4.
  4. See, e.g., Zobel v. Williams, 457 U.S. 55, 60 (1982) (Generally, a law will survive ... scrutiny if
the distinction it makes rationally furthers a legitimate state purpose.); U.S. Dep't of Agric. v. Moreno,
413 U.S. 528, 533 (1973) (Under traditional equal protection analysis, a legislative classification must
be sustained if the classification itself is rationally related to a legitimate governmental interest.).

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