James Bradley Thayer

Life

Born at Haverhill, Massachusetts, he graduated at Harvard College in 1852, where he established the overcoat fund for needy undergraduates. He graduated from the Harvard Law School in 1856, in which year he was admitted to the bar of Suffolk County and began to practice in Boston. In 1873-83 he was Royall professor of law at Harvard; in 1883 he was transferred to the professorship which after 1893 was known as the Weld professorship and which he held until his death on February 14, 1902. He took a special interest in the historical evolution of law.

He wrote: The Origin and Scope of the American Doctrine of Constitutional Law (1893); Cases on Evidence (1892); Cases on Constitutional Law (1895); The Development of Trial by Jury (1896); A Preliminary Treatise on Evidence at the Common Law (1898), and a short life of John Marshall (1901); and edited the twelfth edition of Kent's Commentaries and the Letters of Chauncey Wright (1877), and A Westward Journey with Mr. Emerson (1884).

Rational basis review

The concept of rational basis review can be traced to an influential 1893 article, "The Origin and Scope of American Constitutional Law," by 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."

Works