Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

This article argues for the adoption of a strengthened rational basis test that would allow courts to scrutinize the actual purpose behind legislation and demand that the legislation actually be reasonably related to its valid legislative purpose. Part II looks at the question of why it is desirable to save substantive due process rather than replace it with some other doctrine. Part III examines how substantive due process came to be the dominant form of protection for unenumerated rights, and how it has evolved from its antecedents in English law to the current test. It concludes that substantive due process has been an ever-evolving doctrine, but that the protection of rights has been a constant throughout its history.

Part IV examines how the system has become broken in recent years, with the rational basis test and the strict scrutiny test edging further away from each other and the Supreme Court of the United States abandoning the doctrine in hard cases. PartV then advocates for using a strengthened rational basis test to return rationality to the rational basis test, add legitimacy to the doctrine of substantive due process, and better protect unenumerated rights. It explains how the strengthened rational basis test would work in practice, and how the test avoids some of the problems of the other tests, including the Lochner problem.