rationality

[Robert Justin Lipkin]

        Mitch Berman's remarks are interesting and deserve a lengthy reply,
but let me limit my remarks to these:

       (1) As I understand 'rationality' in due process and equal protection
cases the subject of the Court's evaluation is Congress (legislature), a
practical reasoner(s) (or practical actor(s)), and consequently, Congress's
action (the statute or bill) is rational only derivatively. In my view,
whenever one is evaluating a subject's decision or judgment X, it is always
whether X is rational in the context of some subset of the reasoner
interests, beliefs, needs, goals, and so forth. This involves more knowledge
than the truth of a means-ends statement and additionally it requires
comparative judgments. Judgments of irrationality are sometimes easier,
although only deceptively so. One could say, I suppose, that judgments of ir
rationality are asymmetrical in this regard. Once we identify a person's goal
some means can be shown to be clearly ineffacacious in bringing the goal
about.  The problem with this view in the context of complex actions such as
Congress's is that we don't always know the precise (or perhaps the complete)
goal that Congress seeks to bring about except in the most general terms.
More importantly, when we think we have identified an agents' goal, yet the
means adopted is clearly ineffacacious, then, in my view, we have evidence
that we have misidentified the goal. Suppose we came across someone sitting
down to dine on a roast pig outside his burning house. I think it would take
a good deal of investigation before we concluded that he set the house on
fire in order to roast the pig. I do not mean to say that we can never say
that someone's decision is irrational in Mitch's sense, only that when we
interpret the complex actions of complex agents, it's not clear to me that
this sense of 'irrationality' is helpful. In these cases, we can almost
always reject the charge of  'irrationality' (relative to a given end) by
redescribing the end and its context in different, sometimes more focused,
terms. Indeed, isn't this just what the Court did in the post-1937 economic
due process and commerce clause cases?

       (2) Alternatively, traditional rational basis scrutiny can be regarded
not as an interpretation of the relevant constitutional provision in terms of
a thin conception of 'rationality,' but merely a rhetorical device for
rejecting the interpretive question entirely. Instead, the Court's role is
simply to decide a different issue, namely, the institutional question of
which gov't branch (institution) gets to decide this issue. (And,
importantly, this requires engaging the political philosophical question of
which conception of 'democracy' or 'republicanism' gets to decide this
issue.) This doesn't rely on a thin conception or any conception of
rationality at all. It also explains, I think, why we become troubled when
the Court strikes down a statute on grounds of rationality or irrationality.
What we thought was an institutional question, according to which the Court
is agnostic concerning rationality, turns out not to be so. Some form of
'higher' scrutiny under rational basis scrutiny seems to bring the
interpretive question back into play when we thought rational basis scrutiny
was directed toward the institutional question only. In this view, we should
be wary of a Court judging a law to be irrational, not only because such
judgments often seem unprincipled (especially to the loser), but because the
Court is changing the question that it should be asking. With this approach
we reach the goal of guaranteeing that "the additional stages in the court's
decision tree to appear in more transparently evaluative language."
(Incidentally, in my view, heightened scrutiny also answers the institutional
question, but this time in favor of the court's interpretation of
'rationality.')

       (3) Is the "thin" sense of 'rationality (1) analyzable without
remainder in terms of the truth of a means-end statement so that if the
statement is true the agent's decision is rational or (2) in addition to the
truth of the means-ends statement must it be determined also whether the
means would "advance the agent's own ends"? I do not think that (1) is a
conceivable sense, thin or not, of rationality, while (2) surely is, but, I
would argue, (2) involves a comparative evaluation requiring knowing more
than just one of the agent's ends as well as knowing her beliefs, and so
forth. Consequently, there may be two senses of 'rationality': (a) an
agent-relative sense and (b) rationality without such a qualification. Mitch
is right, I think, that (a) is central to practical reasoning (as is (b)).
But it is question-begging, I submit, to insist that (a) can be explicated
without knowing more than the truth of a means-ends statement. I cannot know
whether burning down a house to roast a pig is rational even from the agent's
perspective unless I know why the agent rejects less extravagant means.

       In sum, I think Mitch is right that agent-relative rationality is
central to practical reasoning, but I do not think it is a thin notion of
rationality. Rather, it is a judgment that the agent's decision to act is
warranted from the agent's perspective and to make this judgment we need to
have sufficient knowledge about the agent's set of beliefs and desires and
how they balance out in a given context. (In the ordinary case of explaining
conduct, we (rightly) assume knowledge of the agent's set of beliefs and
desires. But this assumption can always be challenged, especially when the
action appears irrational.) Shifting to irrationality doesn't help because
ultimately characterizing someone's decision to act as irrational in most
cases also depends on more knowledge than the truth of a means-ends
statement. The view I am opposing  (I do not know if this is Sandy's and
Mitch's view) depends on the fiction of bracketing all the agent's beliefs
and goals except this end and this means, and then asking given just this
means and this end, is the decision to act rational.  And in my view, this is
not a notion of rationality not even from the agent's perspective.

Bobby Lipkin
Widener University School of Law
Delaware

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