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

Howard Schweber schweber at polisci.wisc.edu
Thu Aug 9 07:15:11 PDT 2007


I think there is an important distinction that is being overlooked 
here.  A law can fail rational basis for two distinct reasons:  because 
a court finds that it is not "rational" (the meaning of which has been 
the focus of the discussion thus far) and because the stated 
relationship between  means and ends is so unlikely that the reviewing 
court doesn't believe it -- in other words, a pretext case.  In my own 
efforts to figure out the development of rational basis, I have found 
that it is almost always the case that a law that fails rational basis 
does so because the reviewing judges find that the proferred 
justification for the law is a pretext for an *improper* motive. 

There are two well-recognized categories of improper motives that I can 
think of:  the "bare animus" of the legislature toward a category of 
persons (recognized in Plessy v. Ferguson, for example) and the desire 
of a state legislature to benefit local industries by burdening the 
importation of goods from other states.  Lawrence and Romer were decided 
on the basis of the first; Kassel and other dormant commerce clause 
cases are decided on the basis of the second.

What would actually constitute a law that failed constitutional muster 
because it was entirely irrational is an interesting question.  To 
answer that question requires taking a position on epistemological 
questions; one would have to say that a legislators' honest and 
heartfelt belief  (i.e. non-pretextual) was so universally recognized as 
being without merit as not to constitute a "rational" reason for 
acting.  (Note that one can hypothesize a case for a stated purpose that 
is a pretext for another, legitimate purpose, but it's hard to see why 
anyone would do that unlless the real purpose was likely to fail 
rational basis on a ground other than pretext.) 

So what would qualify . . . astrology?

Howard Schweber
Dept. of Political Science
UW-Madison









obert Sheridan wrote:
> I appreciate the clarification.  
>
> While I recognize that there is surely a difference between what is 
> rational and what a court may accept as rational, I'm not sure that 
> court failure to recognize irrationality makes it any more rational.
>
> At one time I tried to track down what we mean, or the Court means, by 
> "rational" or "irrational" and got myself into the nearest thing to 
> either an infinite regress on the one hand or circular reasoning on 
> the other, in which the words could not be defined without using them.  
>
> In Kassel v. Consolidated Freightways Corporation (1981) 450 US 662, 
> the Court pronounced as "illusory" a state of Ohio regulation 
> prohibiting "double-bottom" (or tandem) rigs as unsafe on Interstate 
> 80 when the facts showed that their use didn't materially increase the 
> number of accidents.   Through all the discussion of commerce clause 
> values, rational basis certainly seems to be among the main issues, 
> certainly for then Justice Rehnquist in dissent as he refers to 
> 'rational safety measures' and 'rational policy determination[s]'.
>
> The prohibition instead would force hauling companies to separate the 
> dual rigs and tow them one at a time through the state or drive around 
> it, thus increasing driving mileage.  Driving mileage was deemed to be 
> the operative test of highway safety, as in accidents per mile 
> driven.  More trips, more accidents would be the actuarial result.  
>
> This showed me that the test of rationality is, or should be, more 
> fact-driven than logic driven, although you can't very well have one 
> without the other.  Thus if a regulation is self-canceling, or 
> self-contradictory in practice, a sort of law of self-defeating 
> unintended consequences, then it is, or should be, irrational for 
> American law purposes.  
>
> I thought that the death penalty fell into this area given the lack of 
> wonderful results from seeing it applied.
>
> rs
> sfls
>
> On Aug 9, 2007, at 5:06 AM, michael curtis wrote:
>
>> 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 <mailto:rs at robertsheridan.com>
>>     *To:* michael curtis <mailto:curtism at bellsouth.net>
>>     *Cc:* Rosenthal, Lawrence <mailto:rosentha at chapman.edu> ; Paul
>>     Finkelman <mailto:PFink at albanylaw.edu> ; Eugene Volokh
>>     <mailto:VOLOKH at law.ucla.edu> ; CONLAWPROF at lists.ucla.edu
>>     <mailto: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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