Rational Basis Test

Take a look at this article by Lawrence Friedman, titled Liberty and Privacy Interests through the Political Question Lens (H/T Legal Theory Blog).

I also examine the contention that liberty and privacy claims involve the same potential for unprincipled judicial decision-making that motivates the Court to step aside in true political question cases. I conclude that the liberty and privacy cases fall outside even the spirit of the political question doctrine and lie soundly within the purview of the judiciary. Application – even by analogy – of the political question doctrine in matters related to liberty and privacy would undermine the Court’s constitutional role in protecting individual rights against government intrusion. Finally, I address an alternative jurisprudential approach that endorses a judicial role in individual rights cases, but in a way that leaves open the possibility for democratic contribution to and embellishment of the judicial declaration of rights. This approach represents another path by which a court may seek to mitigate the worst effects associated with the judicial resolution of constitutional disputes involving governmental regulations in the areas of liberty and privacy.

Friedman views certain liberty and privacy issues through the spectrum of the political question doctrine. These issues are so important, they “lie soundly within the purview of the judiciary.”

I have previously compared the Rational Basis test to a a political question. If you look at what the court is doing, they are not actually judging, but in fact are leaving the determination to other branch. The question is, why bother calling it a test? There is no test. They definitively punt to the legislative branches.

So if Friedman argues that these substantive due process liberty interests should not be considered political questions, maybe a similar argument can be made for certain economic rights currently afforded rational basis review?

Friedman addresses this point:

Of course, Lochner itself is synonymous with a version of substantive due process, aimed at protecting economic interests, that has been discredited.197 This was partly because economic substantive due process resulted in a great deal of judicial intervention—intervention that was insufficiently attentive to actual economic experience.198 As well, the Court’s renunciation of Lochner-style
decision-making acknowledged limitations on the ability of the judiciary to police the political process effectively.199 It must have occurred to the Court, after decades of attempting to chart the reach of economic substantive due process, that it would be increasingly difficult to define interests, like the freedom to contract or pursue a livelihood, without interfering with the ability of state legislatures to exercise their
police powers for the common good.20

So economic rights require a lot of judicial intervention, and freedom of contract rights are hard to define. But, privacy rights require minimal judicial intervention and are easy to define? So much for the “mysteries of the universe.”

Should the political question doctrine be understood to preclude judicial consideration of certain matters, even though those matters are not committed to one of the political branches, and even though judicially manageable standards for addressing those matters exist? In general, the answer is no. Regardless of how controversial an issue may be, when a proper case and controversy presents itself,
the judiciary should exercise its authority to review the products of the political process even in the context of fiercely contested issues like abortion and same-sex marriage. This is so because of the premise of non-economic substantive due process—that there are judicially-enforceable limits on the government’s relatively vast authority to regulate. The nature of the relationship that the Constitution
establishes between the government and the governed, with the latter in control of the former, suggests there are some individual decisions that are so crucial to our ability to function as free and independent citizens in the political community that the deprivation of our ability to make those decisions without interference by the government would undermine not just individual liberty but, perhaps, the community itself. If the courts were to decline to entertain challenges to the government’s power to regulate individual choice in intimate matters, like the decision to bear or beget a child, the relationship between government and the citizenry likely would be quite different from the one the Constitution appears to contemplate.

This helps shed light on why some think the two types of rights should be treated so differently. While I am not sure if I agree with the author’s conclusions, the framework is very instructive.  Interesting.