The Canon of Rational Basis Review

Katie R. Eyer*

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry points for social movements seeking to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history (and present) of rational basis review has included a wide diversity of more meaningful forms of review.

To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection Clause; (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring many sites of constitutional contestation, including the lower and state courts and the political branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review.

Correcting these errors would afford a far different vision of rational basis review. Rather than a uniformly deferential form of review, rational basis review would be understood, correctly, as a deeply inconsistent, “persistently confused” area of constitutional law. Moreover, this very inconsistency would be understood as offering social movements—both historically and today— among the most promising avenues for generating constitutional change.

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© 2018 Katie R. Eyer. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, Rutgers Law School. Many thanks are owed to Bill Araiza, Sam Bagenstos, Lee Carpenter, Jenny-Brooke Condon, Joey Fishkin, Jill Hasday, Stacy Hawkins, Margo Kaplan, Kati Kovacs, Corinna Lain, John Leubsdorf, Earl Maltz, Toni Massaro, Melissa Murray, David Noll, Susannah Pollvogt, Chris Schmidt, David Schraub, Jacob Sherkow, Adam Shinar, Jocelyn Simonson, Alexander Tsesis, and Mary Ziegler, whose commentary on this and prior work were tremendously helpful to the development and revision of this project. This Article was presented at the 2018 ACS Junior Scholars Public Law Workshop, the Drexel Law Faculty Colloquium Series, the NYC-Area Junior Faculty Colloquium, the 7th Annual Loyola Chicago Constitutional Law Colloquium, the Bar-Ilan Conference on the Constitution in the Trial Courts, and the Temple Law Faculty Colloquium Series, and received excellent feedback in all of these venues. Genevieve Tung of the Rutgers Law Library and Rutgers Law student Emily Schmitt provided excellent research assistance. This Article builds on ongoing work by this author focused on descriptively detailing the history of the use of rational basis review by social movements to achieve constitutional change. See Katie R. Eyer, Constitutional Crossroads and the Canon of Rational Basis Review, 48 U.C. Davis L. Rev. 527 (2014); Katie R. Eyer, Protected Class Rational Basis Review, 95 N.C. L. Rev. 975 (2017); Katie R. Eyer, Sex Discrimination and Rational Basis Review: Lessons for LGBT Rights (Nov. 22, 2017) (work in progress). For a model casebook companion section to this Article, see Katie R. Eyer, A Casebook Companion to the Canon of Rational Basis Review, https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 3086830.