Statutory rape in Wisconsin Registration As A Sex Offender: a comment on RS's comment

[michael curtis]

This is the context for my comment which follows.  

On Aug 8, 2007, at 10:45 AM, michael curtis wrote:


   I suggested that in facts like these to require registration as a 

  sex offender--on the assumption that the act shows a proclivity that will 

  persist to molest children--is irrational.  Whether it is unconstitutional 

  is another question.

And all this time I've been teaching that under the rational basis test, if a statute or government act is irrational, it's unconstitutional.


Shame on me.


rs

I meant whether the courts will say it is unconstitutional is a different question from whether a provision is irrational--I assumed wrongly that that assumption was clear.  There is a pretty clear distinction in my mind between what is really quite irrational and what our esteemed judges and justices will treat as irrational for constitutional purposes at any given time.   This is clearer when you look over the broad sweep of history. Eg (had it been raised in those terms) women can't practice law.  Then, there is a distinction between rational basis with bite--or heightened rationality and the not insane therefore ok version.   Lawrence finds the prosecution of gay men for sex at home lacks rationality; Bowers found it was rational. So one who agrees with the Lawrence approach could reasonably say at the time of Bowers that the prosecutions lack rationality, but are not unconstitutional in the sense that the court gets the final word on that and there are not yet enough votes.  (And soon may not be again, but that is another matter.)

Michael Curtis
  ----- Original Message ----- 
  From: Robert Sheridan 
  To: michael curtis 
  Cc: Rosenthal, Lawrence ; Paul Finkelman ; Eugene Volokh ; CONLAWPROF at lists.ucla.edu 
  Sent: Wednesday, August 08, 2007 9:29 PM
  Subject: Re: Statutory rape in Wisconsin Registration As A Sex Offender




  On Aug 8, 2007, at 10:45 AM, michael curtis wrote:


     I suggested that in facts like these to require registration as a 

    sex offender--on the assumption that the act shows a proclivity that will 

    persist to molest children--is irrational.  Whether it is unconstitutional 

    is another question.



  And all this time I've been teaching that under the rational basis test, if a statute or government act is irrational, it's unconstitutional.


  Shame on me.


  rs
  sfls
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