Rational Basis Revue
Constitutional Commentary, Vol. 17, pp. 447-453, 2000
7 Pages Posted: 23 Apr 2013
Date Written: 2000
Constitutional Commentary is no stranger to legal analysis of music or to musings on legal analysis. "Seven years [have] disappear[ed] below [our] feet" since this journal last exercised its quasiconstitutional right to make bad parodies of copyrighted music. Those same seven years have lapsed since the Supreme Court lauded Creedence Clearwater Revival as "one of the greatest American rock and roll bands of all time." "Who'll stop the rain?"
Ah, those seven years were an innocent time, when we loved the law and "laid golden orchid crowns around [its] feet." But the most controversial equal protection case in recent memory has put that relationship to the test. The Supreme Court's pivotal role in ending the longest election night in living memory has shaken "the Nation's confidence in the [Justices] as ... impartial guardian[s] of the rule of law." Not since Gerald Gunther penned the phrase "rational basis with a bite" has low-level judicial review stung so bitterly. The exact meaning of rational basis review is probably one of the few remaining unsolved doctrinal puzzles in American constitutional law. Even presidential candidates know that now. Poor Al! Unable to beat the rap, he went down by law.
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