Rationalizing Rational Basis Review using the Law of Nations

Todd Shaw, a J.D. student at the Northwestern Pritzker School of Law, recently posted a paper on SSRN entitled "Rationalizing Rational Basis Review." From the abstract:

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment, how would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this “credibility-questioning” rational basis review, courts both ignore post hoc rationales that would legitimate a government interest and scrutinize the fit between the challenged statute’s means and ends. Nevertheless, recent scholarship has overlooked why courts have, and should, engage in credibility-questioning rational basis review, particularly of economic legislation.

This article proposes an answer by looking to the “law of nations,” or ius gentium: Courts should apply credibility-questioning rational basis review to economic legislation that benefits concentrated interest groups at the expense of diffuse majorities. This answer follows from an examination of the ius gentium. Specifically, the laws and judicial practices of Germany, Japan, South Africa, and Brazil regarding economic legislation evidence an emerging normative consensus that American courts may consider in reviewing challenges to certain types of economic legislation, such as occupational licensing measures.

Why may American courts consider such laws and practices? Because those laws and practices represent, in a Hayekian sense, “a system of spontaneous legal order [better] able to process larger amounts of disparate bits of information than any central planner could.” And when may American courts consider such laws and practices? If and only if a challenge is brought under an underdeterminate constitutional provision, such as the Equal Protection Clause of the Fourteenth Amendment. The meaning of underdeterminate provisions must be constructed. The laws and practices of other nations may, in certain circumstances, be an appropriate method of construction.

The SSRN link is: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3083807