“Rational basis review” is a terrible way to determine our liberties.
According to the conventional wisdom, if you have a constitutional right to something, any legislative restriction on its exercise is unconstitutional unless a judge finds it to be narrowly tailored to achieve a compelling state interest. This is called “strict scrutiny.” Because this type of scrutiny would bar many, if not most, legal regulations, constitutional rights must be limited to those that are deemed to be truly “fundamental.” All other liberties are deemed to be mere “liberty interests,” which are given what is called “rational basis review”—which is better described as any conceivable basis review.
In an otherwise obscure 1993 case, Federal Communications Commission v. Beach Communications, Inc., Justice Clarence Thomas accurately described modern rational basis review, writing that judges must uphold legislation “if there is any reasonably conceivable state of facts that could provide a rational basis” for it; that those challenging legislation must negate “every conceivable basis which might support it”; and that the government needn’t justify legislation with “evidence or empirical data.” As Justice John Paul Stevens ruefully observed in concurrence, “conceivable” basis review is “tantamount to no review at all.”
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