Outrageous and Irrational

73 Pages Posted: 23 Mar 2015 Last revised: 15 Dec 2015

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Toni M. Massaro

University of Arizona College of Law

Date Written: December 13, 2015


A wealth of scholarship comments on enumerated and unenumerated fundamental rights, such as freedom of speech, the right to marital privacy, and suspect classifications that trigger elevated judicial scrutiny. This Article discusses the other constitutional cases – the ones that implicate no fundamental right or suspect classification, but nevertheless ask for relief from uncategorizable abuses of power. These cases come in two forms: claims that the government’s conduct is outrageous (satisfying the “shocks the conscience” test), or claims that the government’s conduct is irrational (failing the rational basis test). Both forms trigger highly deferential judicial review and serve similar purposes. But they are on divergent trajectories. Courts have cautiously expanded use of the rational basis test in contexts as varied as gay marriage, hair braiding, and coffin sales. The outrageousness test, by contrast, is universally maligned and mistrusted.

We explain and vindicate both tests. We argue that the very features that attract reflexive scorn – their vagueness and flexibility – have a counterintuitive, normative, and practical beauty. They allow courts to occasionally strike down egregious abuses of power without expanding other constitutional rights. They allow limited judicial experimentation before introducing new rights or adding classifications to elevated scrutiny, enabling courts to reach results that have little doctrinal impact beyond their narrow facts. Thus, contrary to their reputations, the tests promote judicial restraint and preserve constitutional coherence.

Keywords: fundamental rights, judicial scrutiny, shock the conscience, rational basis, deferential judicial review, abuse of power, judicial restraint

Suggested Citation

Yakowitz Bambauer, Jane R. and Massaro, Toni Marie, Outrageous and Irrational (December 13, 2015). 100 Minnesota Law Review 281 (2015); Arizona Legal Studies Discussion Paper No. 15-14. Available at SSRN: https://ssrn.com/abstract=2583926

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Toni Marie Massaro

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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