March 31, 2016

Four years ago, it would have been an unthinkable project: Convince a group of influential, widely respected constitutional scholars to write papers about whether the default standard of review in constitutional law is itself unconstitutional. Convince one of the most prestigious law schools in the country to host a symposium at which those papers are presented. Convince a collection of up-and-coming constitutional scholars who are already making their mark to attend. And keep a focused but spirited discussion going for an entire day.

But IJ’s Center for Judicial Engagement has constantly challenged the status quo since it was established in 2011, and we were more than up to the task. Working together with Professor Randy Barnett, who heads the Georgetown Center for the Constitution, CJE hosted a day-long symposium at Georgetown University Law Center dedicated to the question, “Is the Rational Basis Test Unconstitutional?” Papers were presented by (among others) IJ friend Professor Richard Epstein, whose scholarship highlighting the importance of property rights and economic liberty has had a tremendous influence upon American legal thought; Professor Suzanna Sherry, one of the most widely cited legal scholars in the country; Dean Erwin Chemerinsky, recognized in 2014 as the most influential person in legal education in the U.S.; and IJ’s own Dana Berliner. Professor Ilya Somin, who recently published The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and the two of us were also among the participants.

As IJ attorneys know from experience litigating under the rational basis test in economic liberty and property rights cases, the test is unique in requiring judges to decide constitutional cases on the basis of speculation and conjecture rather than fact. Unlike all other constitutional standards, the rational basis test as set forth by some judges does not require the government to offer a genuine explanation for its actions, does not require the government to support its factual assertions with evidence, and may even require judges to invent justifications for challenged laws when the government’s arguments fall short. It is the jurisprudential equivalent of a rigged carnival game.

If that sounds a bit over the top, none of the scholars at the symposium took issue with that characterization of the rational basis test. What disagreements there were involved concern that strengthening the rational basis test or replacing it with a more rigorous framework would obliterate the welfare state.

In response, we made plain that judicial engagement is a modest ask. We are simply asking that judges require an honest, reasoned explanation from government officials when they burden Americans’ peaceful pursuits of happiness. That is what the U.S. Constitution requires, and that is what Americans expect and deserve from judges who enforce it. If that is not possible under the rational basis test, then we must seriously consider whether the default standard for deciding constitutional cases is itself unconstitutional. By the end of the symposium, that critically important inquiry was well underway, and CJE looks forward to continuing it.

Clark Neily is an IJ senior attorney and director of the Center for Judicial Engagement.

Evan Bernick is assistant director of the Center for Judicial Engagement.

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