A Conceivable Constitution: How the Rational Basis Test Throws Darts and Misses the Mark

South Texas Law Review, Vol. 59, No. 77, 2017

44 Pages Posted: 31 Oct 2018

See all articles by Tara A. Smith

Tara A. Smith

University of Texas at Austin

Date Written: 2017

Abstract

This paper argues that the judiciary’s use of the Rational Basis Test splinters Constitutional sovereignty and thereby undermines the Constitution’s supremacy. It replaces the rule of the Constitution with the rule of a conceivable Constitution and subjects the governed to an array of reasonable readings thereof.

While others have raised sharp criticisms of the Rational Basis Test in recent years, they have failed to appreciate its fundamental failing. Most critics contend that the test’s increasingly permissive character could be corrected, if only it were employed within sensible proportions. My claim, by contrast, is that the test is misguided in principle. A re-fortified Rational Basis Test is not the needed remedy.

By examining the conventional critique’s complaints of jurists’ fanciful imagining of lawmakers’ possible motives, I show that motives (whether imaginary or actual) are a red herring. The test’s deeper problem is its adoption of a standard of legality other than the Constitution.

The paper also considers three possible defenses of the test, but finds all of them wanting.

Suggested Citation

Smith, Tara A., A Conceivable Constitution: How the Rational Basis Test Throws Darts and Misses the Mark (2017). South Texas Law Review, Vol. 59, No. 77, 2017, Available at SSRN: https://ssrn.com/abstract=3264443

Tara A. Smith (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX Texas 78712
United States

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