Standards of Review

When Space Law takes over the entire curriculum of the Law College, and the Dean allows me only one hour to teach Constitutional Law, this is what I will teach:

    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.]


See Nowak at 357:  “Where the government seeks to deprive persons of fundamental rights, it must prove to the Court that the law is necessary to promote a compelling or overriding interest.  Where no such right is restricted, the law need only rationally relate to any legitimate end of government.  As long as there is any conceivable basis for finding such a rational relationship, the law will be upheld.  Only when a law is a totally arbitrary deprivation of liberty will it violate the substantive due process guarantee.”