Rationality is dead! Long live rationality! Saving rational basis review

Abstract

Rational basis review has been in trouble for a while. For at least the past 35 years it has been constantly criticised for being 'empty', 'toothless', inconsistent and incoherent. Despite its doubtful pedigree, litigants continue to rely on it and the courts refuse to alter the test to answer their critics. This essay is one more in a long lineage of attempts to figure out what is wrong with rational basis review and propose a way forward.