Yeah, you understand and you’re right that the current rules accurately describe the current prevailing wisdom, but that’s kind of tautological. Some of the we

Yeah, you understand and you’re right that the current rules accurately describe the current prevailing wisdom, but that’s kind of tautological. Some of the weak spots are rational basis review being too deferential. Certainly a law is constitutional unless there is some claim to the contrary, but when it comes into conflict with individual rights, a judgment has to be made and that’s an inherently judicial task, not suited to deference. Another weak spot is the commerce clause, because it is certainly legitimate evaluate whether the law falls within Congress’s legislative authority. Anyone who reads the enumerated powers can tell “essentially anything” would have been a lot easier write… and yet the founders enumerated specific limited areas. It’s hard to predict exactly what they’ll say, but my best guess would be focusing more on this connection between the legislative authority and the means employed by the statute, balanced against the rights allegedly being impaired (without regard to whether those are fundamental / class based. If a law is squarely within legislative authority, then congress shouldn’t need a rational basis. Rather than saying it impairs a fundamental right, they could focus on the fact that regulation of speech is not strongly within the legislative authority. As a law ventures further from historical and transitional exercises, the basis for the law would have to get stronger. Honestly, this isn’t a major change, but erroneous New Deal Era caselaw has corrupted the logic. Sure, in theory everything could be called interstate commerce, but regulating viewpoint based speech is a has a stronger impact on speech than on commerce. Meanwhile, regulating the length of merchant vessels falls a lot closer to regulating seagoing commerce than to speech. No need to apply different standards.