The Rational Basis Test Is Constitutional (and Desirable)

21 Pages Posted: 21 May 2016

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Date Written: May 19, 2016


The rational basis test is not only constitutional but also desirable. Nothing in the Constitution requires more exacting scrutiny than rational basis review and deference to the government is often appropriate. This article makes three main points. First, balancing between individual freedoms and government interests is inevitable in constitutional law, and the rational basis test is a necessary and desirable way of doing so when deference to the government is appropriate. Second, the Court has basically gotten it right about when to apply the rational basis test — using it to analyze government economic regulations and social welfare legislation when there is no discrimination based on a suspect classification or infringement of a fundamental right. My final point acknowledges a flaw in the test, that as currently applied, is too deferential because it allows laws to be upheld based on a conceivable permissible purpose, and is not concerned with whether the law meaningfully advances the government’s goal. But a merely conceivable purpose should be insufficient to do so. There should have to be an actual legitimate purpose, and there should be a meaningful relationship between the means chosen and the ends sought to be achieved.

Suggested Citation

Chemerinsky, Erwin, The Rational Basis Test Is Constitutional (and Desirable) (May 19, 2016). Georgetown Journal of Law & Public Policy, 2016, Forthcoming; UC Irvine School of Law Research Paper No. 2016-30. Available at SSRN:

Erwin Chemerinsky (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States


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