Talk:Rational basis review

Equal Protection Clause

I know that whether a group gets rational review or something higher is an extremely important part of equal protection clause jurisprudence. I don't feel comfortable enough with my con law background to add a section, but it seems like the EPC should at least be mentioned.Kyle J Moore 14:41, 7 October 2007 (UTC)

Rational basis review with bite?

This section is onto an important and developing legal topic, but it is off; Plyler is not an example of the "enhanced rational basis review" of Cleburne or Romer. However, Lawrence v. Texas should be discussed in this section, because while there was no majority opinion for any sandard or review, the analysis of the plurality and O'Connor in her concurrence, proceed very similarly to that of Romer. However, I am not willing to make the edit myself at this time, because, although I am known as a walking encyclopedia of the U.S. Constitution to my friends, I am not certain that my position on this encyclopediac. If that changes, I will edit this article accordingly. Also, I concur with Mr. Moore above. Equal Protection clause must be be mentioned on this page. That I will change, along with some more history. Non Curat Lex (talk) 01:47, 28 January 2008 (UTC)

• We'd also need some sources to show that "rational basis with bite" is even a notable concept. Just because a law is overturned on a rational basis review doesn't mean it's "enhanced rational basis review". When the Supreme Court uses rational basis review to decide a case, it doesn't mean they automatically rule in the government's favor. It just means that the government has very low standards they have to meet for justifying their actions. But sometimes laws are enacted that can't even jump that low hurdle. 71.203.209.0 (talk) 21:32, 29 May 2008 (UTC)

That's an interesting point. When I was in law school, the constitutional law professor basically assumed that if the standard is rational basis, the government wins. The rational basis cases that the government lost were called "rational basis with bite." I disagreed with that assessment. I thought it just showed that rational basis was slightly tougher than law professors had claimed it was. It's not just a rubber stamp. It requires the government to be able to articulate at least some kind of a reasonable argument. If we could find sources expressing these various opinions it would really be helpful. Chicken Wing (talk) 22:15, 29 May 2008 (UTC)

Rational basis "with bite" is a notable concept. I am not sure it is correct that you say "because a law is overturned on a rational basis review doesn't mean it's "enhanced rational basis review," because it is fundamentally inconsistent with the nature of the test, that a law be overturned on those grouds. Although it is only a rebuttable presumption in theory, it is irrebutable in fact. In those cases where the government has "lost" despite "rational basis review," the court always rewords the test in the process. Why? Because as properly worded, rational basis review requires only that the government act is rationally related to _any_ legitimate purpose. Under an _any legitimate purpose_ standard, _any_ law can be defended as constitutional, because even a hypothetical or imaginary purpose that has only a tangential relationship with the true legislative intent will suffice to save the law. There's a reason why true "rational basis review" is unwinnable: how does a plaintiff meet his burden of proving that there is not one single legitimate purpose to which the law rationally relates?

Now, in Romer and Lawrence, the court did not apply that test as worded. They found the state laws unconstitutional because they were discriminatory and related to an illegitimate purposes, while still maintaining that the group or right discriminated against was one that did not suspectly-classified or fundamental. In other words, they did not apply a "any legitimate interest" test. So even though they talked about "rational basis" (or lack thereof) they didn't really apply that test. They did not concede that some rational basis could be found. They rested on the fact that the real reason was illegitimate. That is a new kind of test not seen before Romer.

If there is any doubt that there is a "new kind of scrutiny" out there that is at least notable, I think the 9th circuit removed it this week with Witt v. Dep't of the Air Force. Although I disagree in part with _Witt_, the opinion clearly shows that this new form of scrutiny is gaining traction.

Finally, some of the confusion might be because we are mixing issues of substantive law with procedure. Just because one side prevails on appeal doesn't mean they win the case. The supreme court may be the court of last resort, but often, just because the parties are in the Supreme Court does not mean there is a final decision in the case; even if the Supreme Court effectively ends the case, plenty of postjudgment issues would still have to be hammered out in trial court. So it is important in assessing what a case actually holds, to understand where in the process it is coming. For example, Witt was a review of a decision dismissing a case. The victory by the individual against the government in the Supreme Court meant that the government lost an appeal, but it dosn't mean they'll lose the case; all it means is that the case can go forward; the plaintiff has the right to take the defendant government entity to trial. She still has to prove her case to win anything (although, after a defeat on appeal that reinstate a case, parties often settle rather than going to trial). Non Curat Lex (talk) 08:03, 30 May 2008 (UTC)

It's still possible for a law to literally have no rational basis behind them. If the government is unable to make an even hypothetically valid arguement that a law serves a legitimate government interest, then that law would be overturned even under the weakest of scrutiny. 71.203.209.0 (talk) 15:09, 10 June 2008 (UTC)

Major cleanup needed

This article is horribly bad. It's just wrong, in so many respects. MAJOR MAJOR work needs to be done, by lawyers or law students in good academic standing with con-law background.

Done! Law Student in con-law this semester (year 2)! Was able to organize the article and also removed the "legal ease" so that non-lawyers could understand. Added about 6 new references to make the information more factual and non-biased. Finally, added the ever famous Wiki links to other articles and put related case law under the "See Also" section. Anything else? Morning277 (talk) 01:10, 18 December 2009 (UTC)