norml21 - Page 68
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people, in a scientific age, to insist upon a rational basis for
governmental action° No branch of government is immune from that
demand. And when the legislative department fails in it duty,
the courts must respond. See Marburz__!_ Madison, 2 L. Ed. 66
(1803). But Goodpaster has artfully shown how a modest modicum
of judicial review under the reasonable relationship test has
suffered an attenuation to a _rational-relationship" or
minimum-rationality test. "We have gone by this; route from a
modest measure of judicial review to no review at all."
Goodpaster, The Constitution and FunDamental Rights° 15 Ariz. L.
Revo 479_
Our process of judicial review has much relied upon the
principle of presumptive constitutionality. The motivation for
this limitation upon review resides largely in a commitment to
_neutrality" in judicial review° "The Constitution, _' Justice
Holmes wrote, "was not intended to embody any particular economic
theory° It is to be preserved for many fundamentally differing
social view°" Lochner vo New York, 198 U.S. 45, 25 S. Cto 539,
49 L. Edo 937 (1905) (Holmes, J., dissenting)° The important
corollary to the analysis of the nature of American
constitutionalism so eloquently expressed by Holmes in Lochne< is
that government can and should be able to meet the needs of a
changing society°
It was the fear of legislative and majoritarian abuse of
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