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Outrageous and Irrational

By Jane R. Bambauer & Toni M. Massaro. Full text here.

A wealth of scholarship comments on enumerated and unenumerated fundamental rights, such as freedom of speech, the right to marital privacy, and suspect classifications that trigger elevated judicial scrutiny. This Article discusses the other constitutional cases—the ones that implicate no fundamental right or suspect classification, but nevertheless ask for relief from uncategorizable abuses of power. These cases come in two forms: claims that the government’s conduct is outrageous (satisfying the “shocks the conscience” test), or claims that the government’s conduct is irrational (failing the rational basis test). Both forms trigger highly deferential judicial review and serve similar purposes. But they are on divergent trajectories. Courts have cautiously expanded use of the rational basis test in contexts as varied as gay marriage, hair braiding, and coffin sales. The outrageousness test, by contrast, is universally maligned and mistrusted.

We explain and vindicate both tests. We argue that the very features that attract reflexive scorn—their vagueness and flexibility—have a counterintuitive, normative, and practical beauty. They allow courts to occasionally strike down egregious abuses of power without expanding other constitutional rights. They allow limited judicial experimentation before introducing new rights or adding classifications to elevated scrutiny, enabling courts to reach results that have little doctrinal impact beyond their narrow facts. Thus, contrary to their reputations, the tests promote judicial restraint and preserve constitutional coherence.