The "rational basis" STANDARD OF REVIEW emerged in the late 1930s, as the Supreme Court retreated from its earlier activism in the defense of economic liberties. We owe the phrase to Justice HARLAN FISKE STONE, who used it in two 1938 opinions to signal a new judicial deference to legislative judgments. In UNITED STATES V. CAROLENE PRODUCTS CO. (1938), Stone said that an ECONOMIC REGULATION, challenged as a violation of SUBSTANTIVE DUE PROCESS or of EQUAL PROTECTION, would be upheld unless demonstrated
facts should "preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators." In South Carolina State Highway Department v. Barnwell Brothers, Inc. (1938), Stone proposed "rational basis" as the standard for reviewing STATE REGULATIONS OF COMMERCE. (Later, Stone would accept the necessity for more exacting judicial scrutiny of such laws.) To complete the process, the Court adopted the same deferential posture toward congressional judgments that local activities substantially affected INTERSTATE COMMERCE and thus might be regulated by Congress under the COMMERCE POWER. In all its uses, "rational basis" represents a strong presumption of the constitutionality of legislation.
Yet even so minimal a standard of JUDICIAL REVIEW does, in theory, call for some judicial scrutiny of the rationality of the relationship between legislative means and ends. And that scrutiny of means makes sense only if we assume that the ends themselves are constitutionally required to serve general, public aims; otherwise, every law would be self-justifying, as precisely apt for achieving the advantages and disadvantages it achieves. Although the Court has sometimes suggested in economic regulation cases that even a search for legislative rationality lies beyond the scope of the judicial function, some such judicial scrutiny is required if our courts are to give effect to generalized constitutional guarantees of liberty and equality. Today's assumption, therefore, is that a law depriving a person of liberty or of equal treatment is invalid unless, at a minimum, it is a rational means for achieving a legitimate legislative purpose.
Even so relaxed a standard of review appears to call for a judicial inquiry always beset by uncertainties and often dominated by fictitious assumptions. Hans Linde has demonstrated the unreality attendant on judicial efforts to identify the...