The New Jim Crow Is the Old Jim Crow

A vast divide exists in the national imagination between the racial struggles of the civil rights era and the racial inequality of the present. The attitudes and legal strategies of segregationists in the civil rights era are conceptualized as explicit, gross, and founded exclusively in raw racial animus. In contrast, racial inequality in the present is conceptualized as subtle, subconscious, and structural. The causes of modern racial inequality—and the obstacles to its remediation—are thus characterized as fundamentally distinct from those undergirding historical racial inequality

The Canon of Rational Basis Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review. This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry points for social movements seeking to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history (and present) of rational basis review has included a wide diversity of more meaningful forms of review. To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection Clause; (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring many sites of constitutional contestation, including the lower and state courts and the political branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review. Correcting these errors would afford a far different vision of rational basis review. Rather than a uniformly deferential form of review, rational basis review would be understood, correctly, as a deeply inconsistent, “persistently confused” area of constitutional law. Moreover, this very inconsistency would be understood as offering social movements—both historically and today— among the most promising avenues for generating constitutional change

The Canon of Rational Basis Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review. This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry points for social movements seeking to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history (and present) of rational basis review has included a wide diversity of more meaningful forms of review. To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection Clause; (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring many sites of constitutional contestation, including the lower and state courts and the political branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review. Correcting these errors would afford a far different vision of rational basis review. Rather than a uniformly deferential form of review, rational basis review would be understood, correctly, as a deeply inconsistent, “persistently confused” area of constitutional law. Moreover, this very inconsistency would be understood as offering social movements—both historically and today— among the most promising avenues for generating constitutional change