Rational Choice, Rational Agenda-Setting, and Constitutional Law: Does the Constitution Require Basic or Strengthened Public Rationality?

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This Article draws a distinction between two types of norms of rational choice: basic rationality norms, and strengthened rationality norms. Basic rationality norms take as given the agent's context of choice (choice situation) and evaluate a choice as rational, relative to a specified such context. A given choice situation includes a particular set of possible actions and a particular informational base upon which the agent is predicating her choice. In effect, a basic rationality norm asks: Was this choice rational, given the agent's information and the other alternatives being considered? Strengthened rationality norms seek to evaluate the choice situation itself. For example, ought the agent to have considered additional options, or a different set of options entirely? Ought she to have gathered more information before making the choice? Cost-benefit analysis (CBA), in its standard form, is employed as a basic rationality norm. The analyst intuitively generates a set of possible first-order options and gathers information through some information-gathering process which is not, itself, the product of a threshold cost-benefit choice. CBA is then used to determine which of the given first-order options is best - specifically, which one maximizes the sum of compensating variations. However, one can imagine cost-benefit techniques, or other techniques, for evaluating choice situations themselves. For example, a threshold choice of information-gathering processes, or processes for generating possible options, might be made using CBA or expected utility analysis. The process chosen at the threshold would then be used to generate the first-order options that the agent would evaluate using standard CBA, standard expected utility theory, or following some other basic rationality norm; and this choice would be guided by information produced through the information-gathering process rationally chosen at the threshold. How does this relate to law? The law currently contains quite broad basic-rationality constraints on governmental choice. One example is CBA, as required by Executive Order 12866 and various statutes and judicial doctrines. Another is the minimum rationality required by Due Process and Equal Protection doctrine. There is no comparable, generic, legal constraint limiting the threshold governmental decisions (often quite intuitive and arbitrary) concerning the priority that various problems should be given, the range of alternative possible actions to address a given problem, and the informational base for choosing between these options. Why not? Why not impose legal constraints requiring (some kind of) strengthened rationality from governmental officials? Relatedly, why should the current nonconstitutional legal constraints on basic rationality (CBA) be stronger than the current constitutional constraints (Due Process and Equal Protection rationality)? In short, does the Constitution require basic or strengthened public rationality? This Article addresses that important question, merging the literatures on rational choice and constitutional law.