Constitutional Law Outline
I. THREE STANDARDS OF REVIEW
A. Three standards: There are three key standards of review which reappear constantly throughout Constitutional Law. When a court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review: (1) the mere rationality standard; (2) the strict scrutiny standard; and (3) the middle-level review standard.
1. Mere rationality: Of the three standards, the easiest one to satisfy is the “mere rationality” standard. When the court applies this “mere rationality” standard, the court will uphold the governmental action so long as two requirements are met:
a. Legitimate state objective: First, the government must be pursuing a legitimate governmental objective. This is a very broad concept — practically any type of health, safety or “general welfare” goal will be found to be “legitimate.”
b. Rational relation: Second, there has to be a “minimally rational relation” between the means chosen by the government and the state objective. This requirement, too, is extremely easy to satisfy: only if the government has acted in a completely “arbitrary and irrational” way will this rational link between means and end not be found.
2. Strict scrutiny: At the other end of the spectrum, the standard that is hardest to satisfy is the “strict scrutiny” standard of review. This standard will only be satisfied if the governmental act satisfies two very tough requirements:
a. Compelling objective: First, the objective being pursued by the government must be “compelling” (not just “legitimate,” as for the “mere rationality” standard); and
b. Necessary means: Second, the means chosen by the government must be “necessary” to achieve that compelling end. In other words, the “fit” between the means and the end must be extremely tight. (It’s not enough that there’s a “rational relation” between the means and the end, which is enough under the “mere rationality” standard.)
i. No less restrictive alternatives: In practice, this requirement that the means be “necessary” means that there must not be any less restrictive means that would accomplish the government’s objective just as well.
3. Middle-level review: In between these two review standards is so-called “middle-level” review.
a. “Important” objective: Here, the governmental objective has to be “important” (half way between “legitimate” and “compelling”).
b. “Substantially related” means: And, the means chosen by the government must be “substantially related” to the important government objective. (This “substantially related” standard is half way between “rationally related” and “necessary”).
B. Consequences of choice: The court’s choice of one of these standards of review has two important consequences:
1. Burden of persuasion: First, the choice will make a big difference as to who has the burden of persuasion.
a. Mere rationality: Where the governmental action is subject to the “mere rationality” standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.
b. Strict scrutiny: By contrast, if the court applies “strict scrutiny,” then the governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.
c. Middle-level review: Where “middle level” scrutiny is used, it’s not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government.
2. Effect on outcome: Second, the choice of review standard has a very powerful effect on the actual outcome. Where the “mere rationality” standard is applied, the governmental action will almost always be upheld. Where “strict scrutiny” is used, the governmental action will almost always be struck down. (For instance, the Supreme Court applies strict scrutiny to any classification based on race, and has upheld only one such strictly scrutinized racial classification in the last 50 years.) Where middle-level scrutiny is used, there’s roughly a 50-50 chance that the governmental action will be struck down
on alienage; and (3) rights that are not “fundamental” even though they are very important, such as food, housing, and free public education. In all of these areas, the classification will be reviewed under the “mere rationality” standard, and will therefore almost certainly be upheld.
d. Contracts Clause: Lastly, we find “mere rationality” review in some aspects of the “Obligation of Contracts” Clause.
2. Strict scrutiny: Here are the various contexts in which the court applies strict scrutiny:
a. Substantive due process/fundamental rights: First, where a governmental action affects fundamental rights, and the plaintiff claims that his substantive due process rights are being violated, the court will use strict scrutiny. So when the state impairs rights falling in the “privacy” cluster of marriage, child-bearing, and child-rearing, the court will use strict scrutiny (and will therefore probably invalidate the governmental restriction). For instance, government restrictions that impair the right to use contraceptives receive this kind of strict scrutiny.
b. Equal protection review: Next, the court uses strict scrutiny to review a claim that a classification violates the plaintiff’s equal protection rights, if the classification relates either to a suspect classification or a fundamental right. “Suspect classifications” include race, national origin, and (sometimes) alienage. “Fundamental rights” for this purpose include the right to vote, to be a candidate, to have access to the courts, and to travel interstate. So classifications that either involve any of these suspect classifications or impair any of these fundamental rights will be strictly scrutiniz