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.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.