The concept of rational basis review can be traced to an influential 1893 article, "The Origin and Scope of American Constitutional Law", by Harvard law professor
James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is "so clear that it is not open to rational question". Justice
Oliver Wendell Holmes Jr., a student of Thayer's, articulated a version of what would become rational basis review in his canonical dissent in
Lochner v. New York, arguing that the word 'liberty', in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. However, the court's extensive application of economic substantive due process during
the years following Lochner meant that Holmes' proposed doctrine of judicial deference to state interest was not immediately adopted. It was not until
Nebbia v. New York that the Court began to formally apply rational basis review, when it stated that "a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose". In
United States v. Carolene Products Co. the Court in
Footnote Four left open the possibility that laws that seem to be within "a specific prohibition of the Constitution", which restrict the political process, or which burden "
discrete and insular minorities" might receive more exacting review. Today, such laws receive
strict scrutiny, whereas laws implicating
unenumerated rights that the Supreme Court has not recognized as
fundamental receive rational basis review. Under rational basis review, laws are
presumed to be constitutional in deference to legislators. ==Applicability==