That would be bad enough, but suppose he accomplishes it. First, heвЂ™s forced to prove his innocence. Imagine for a moment that this test were applied in criminal law. This is why Clark Neily refers to the test as the вЂњrationalize-a-basisвЂќ test-if the court can imagine a legislator thinking that the law could be a good idea for some reason, itвЂ™sВ constitutional. Sometimes, though not always (inconsistency is just part of the charm hereВ in Rational Basis Land!) the plaintiff is required to disprove purely hypothetical, even absurd rationalizations for the law-even rationalizations the legislature did not have in mind when it passed the restriction on freedom. Shifting the burden as the rational basis test does is illogical, and it loads the dice against plaintiffs who are usually not in a position to obtain legal assistance and take on theВ government.Д«ut it gets worse: courts donвЂ™t just require plaintiffs to disprove the actual basis for the governmentвЂ™s restrictions on individual liberty. Logically speaking, the burden of proof should rest on the government, which asserts that it is justified in restricting a personвЂ™s liberty-not on the person who wishes merely to be left alone. This is problematic to begin with, since forcing someone to prove a negative is, literally, impossible. ItвЂ™s not just a stupid rock-itвЂ™s a giant, teeteringВ boulder.ДЇirst, that test requires a plaintiff to disprove the rationale for the law. And the rational basis test-a legal theory with no foundation whatsoever in the Constitution of the United States-stands as the biggest obstacle. The Bruner case is a nice step forward, but itвЂ™s only one decision. And there are plenty of examples of courts upholding arbitrary and irrational restrictions on economic liberty, on the theory that such questions are best left to the legislature. Harris, which says legislators may block entrepreneurs from entering a trade solely to grant an economic favor to established businesses, without any regard whatsoever forВ public health and safety concerns.

Yes, Raleigh Bruner was one of the fortunate ones to win a rational basis case-which, as the court acknowledged, is вЂњa daunting task.вЂќ But, as the court also acknowledged, the decision in BrunerвЂ™s case conflicts with the Tenth CircuitвЂ™s decision in Powers v. In fact, the rational basis testВ works just about as well as LisaвЂ™sВ rock. Zawacki proves that the minimal scrutiny courts apply to cases involving economic liberty is working just fine. RooseveltвЂ™s argument that the decision in Bruner v.

But you donвЂ™t see any tigers around, doВ you?вЂќ вЂњBy your logic I could claim that this rock keeps tigers away,вЂќ sheВ says. ThereвЂ™s an episode of The Simpsons in which Homer insists that SpringfieldвЂ™s Bear Patrol is effective in keeping away bears.

Rational scrutiny