Standards of Constitutional Review

The Equal Protection Clause provides: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." 

    STANDARDS OF REVIEW


    I.  MINIMAL SCRUTINY (DEFERENCE)

Rational Basis Test - The government restriction need only be rationally or conceivably related [Means] to any legitimate state interest [Ends]. 


    II.  INTERMEDIATE SCRUTINY (SKEPTICISM)

Intermediate Scrutiny Test - The government restriction must serve important governmental objectives [Ends] and must be substantially related to the achievement of those objectives [Means].  [“Intermediate scrutiny always asks is there some less restrictive alternative available?”  Epstein, Takings at 138.]


    III.  STRICT SCRUTINY (CYNICISM)

    The governmental restriction must be necessary [the Least Restrictive Means] to achieve a compelling state interest [Ends]. 


                                   CHART


        MEANS                                          ENDS

I.  Rationally Related                        Any Legitimate State Interest


II. Substantially Related                  Important Governmental Objective


III. Necessary                                         Compelling State Interest


[The Ends are the purposes sought to be advanced (e.g. health and safety).  Means are the methods chosen to accomplish those ends.]

 Notice this insight of Chief Justice Rehnquist: "The Equal Protection Clause is itself a classic paradox, and makes sense only in the context of a recently fought Civil War. It creates a requirement of equal treatment to be applied to the process of legislation, legislation whose very purpose is to draw lines in such a way that different people are treated differently. The problem presented is one of sorting the legislative distinctions which are acceptable from those which involve invidiously unequal treatment." Trimble v. Gordon, 430 U.S. at 780 (1977).

In other words, the job of the Court is to sort through mounds of perfectly legitimate legislative classifications in order to isolate and invalidate the few bad apples in the orchard. The 3 standards of review enable the Court to strike down invidious classifications while upholding the legitimate classifications.