Jeffrey D. Jackson (Washburn University - School of Law) has posted Classical Rational Basis and the Right to Be Free of Arbitrary Legislation (14 Geo. J. L. & Pub. Pol'Y 493 (2016)) on SSRN. Here is the abstract:
The modern rational basis test used in cases such as Williamson v. Lee Optical and FCC v. Beach Communications is not the “classical” rational basis test that our constitutional tradition demands. Despite the triumphant statements of its adherents, this formulation of the rational basis test is not the traditional test for arbitrary legislative acts that our constitutional tradition recognizes, nor is it required for our constitutional system to properly function.
Although the modern rational basis test has many features to dislike, its primary failing from a constitutional standpoint is simply this: The test itself does not do what it is designed to do. The purpose of the rational basis test, admitted by even those who cite Williamson or FCC v. Beach Communications with favor, is to prohibit irrational or arbitrary legislation. However, because the modern rational basis test operates on the basis of what the legislature “could have thought,” without regard to what the legislature’s actual purpose was or whether that purpose or any other legitimate purpose is actually served by the legislation, it is the judicial equivalent of no test at all. Because almost any possible legislation can be justified under modern rational basis review, the modern rational basis test deprives persons from one of the great rights underpinning our constitutional system: The right not to be subjected to arbitrary legislation.