Through the “rational basis” test, the Supreme Court asserts the authority to assess whether laws are “rationally related to a legitimate governmental interest.” Although it gives the Court an effective substantive veto over all legislation, rationality review is poorly understood and under-theorized. Developed haphazardly over time, rationality review is not the product of either a considered formula or a particular theory of constitutional law, and though it is clothed in the language of rationality, it represents the Court’s own decidedly intuitive understanding of the proper sphere of state regulation. At one time, that understanding was based in a widely held conception of the “police power,” but the connection to the police power was severed after the Court’s decision in United States v. Carolene Products. Since then, the Court has developed ad hoc a conception of the proper role of government that has become almost entirely utilitarian in nature.
This Article examines the Court’s view of how rationality should (and by virtue of the power of judicial review must) feature in legislation by tracing the development of rationality review and comparing it to more rigorous understandings of political rationality. Comparison reveals the Court’s limited conception of rationality, which allows the Court to avoid difficult questions in pursuit of seemingly uncontroversial instrumental ends. Examination of the Court’s approach to rationality demonstrates the need for a broader conception of legislative rationality – one that includes “constitutive ends.” Recognizing constitutive legislative ends, combined with an information-forcing rule for revealing those ends, can both improve democratic discourse in the legislature and lead to a richer and more intellectually honest form of rationality review.