Jonah Patel
The three levels of scrutiny in constitutional interpretation are rational basis, intermediate scrutiny, and strict scrutiny. These levels are used by courts to determine the constitutionality of laws and government actions. The level of scrutiny applied determines how a court will analyse a law and its effects, as well as which party has the burden of proof. The rational basis test is the lowest level of scrutiny, requiring the challenger to prove that the government has no legitimate interest in the law or that there is no reasonable, rational link between the government's interest and the challenged law. Intermediate scrutiny is applied in cases involving gender discrimination, where the government action must be substantially related to an important government interest. Strict scrutiny is the highest level of scrutiny, applied when a law infringes upon a fundamental constitutional right or involves a suspect classification, such as race or religion.
| Characteristics | Values |
|---|---|
| Strict scrutiny | Highest level of scrutiny, shifts the burden of proof to the government |
| Applied when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights, or when government action applies to a "suspect classification", such as race or national origin | |
| The law or policy must be justified by a compelling governmental interest and be narrowly tailored to achieve that interest | |
| Used in cases such as Korematsu v. United States (1944) and Abigail Alliance v. von Eschenbach (2007) | |
| Intermediate scrutiny | Moderate level of scrutiny, the government's burden is reduced |
| The government must show an important or substantial interest, and that the means chosen to advance that interest are substantially related | |
| Used in cases such as Craig v. Boren (1976) and NIFLA v. Becerra | |
| Rational basis | Lowest level of scrutiny, requires very little for a law to pass as constitutional |
| The person challenging the law must prove that the government has no legitimate interest in the law or that there is no reasonable, rational link between that interest and the challenged law | |
| Used in cases such as Nebbia v. New York (1934) |
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What You'll Learn
- Strict scrutiny: the highest level, applied when a fundamental constitutional right is infringed
- Intermediate scrutiny: applied to gender discrimination and certain types of speech
- Rational basis: the lowest level, applied to laws challenged as irrational or arbitrary
- Safeguarding fundamental rights: levels of scrutiny protect freedoms like speech and equal protection
- Upholding the balance of power: levels of scrutiny maintain a balance between legislative decisions and individual liberties
Strict scrutiny: the highest level, applied when a fundamental constitutional right is infringed
Strict scrutiny is the highest standard of judicial review in the United States. It is applied when a law or government action infringes upon a fundamental constitutional right or involves a suspect classification, such as race, religion, national origin, or alienage. The concept of strict scrutiny was introduced in Footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products Co. (1938).
When strict scrutiny is applied, the challenged law is held as presumptively invalid, and the burden of proof shifts to the government to demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also show that the law is ''narrowly tailored'' to achieve that compelling purpose and that it uses the ''least restrictive means'' to achieve that purpose. This means that the government must provide evidence that its actions were constitutional and that they did not violate explicit constitutional protections.
The Supreme Court has applied strict scrutiny in several notable cases, including Korematsu v. United States (1944), which involved the forced relocation of Japanese Americans during World War II, and Abigail Alliance v. von Eschenbach (2007), which concerned the restriction of unapproved prescription drugs. In these cases, the Court found that the government's actions satisfied strict scrutiny and were therefore constitutional.
However, it is important to note that the application of strict scrutiny is not always clear-cut, and courts sometimes adjust scrutiny levels based on societal changes or evolving constitutional interpretations. For example, LGBTQ+ rights have increasingly been subjected to intermediate scrutiny in some cases, blurring the lines between the different levels of scrutiny.
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Intermediate scrutiny: applied to gender discrimination and certain types of speech
Intermediate scrutiny is one of the three levels of scrutiny applied in constitutional interpretation, the other two being rational basis and strict scrutiny. It is applied to cases involving gender discrimination and certain types of speech.
Gender Discrimination
In the case of Craig v. Boren (1976), the Supreme Court applied intermediate scrutiny to a law that allowed females to purchase alcohol at a younger age than males. The Court said that the law did not withstand intermediate scrutiny, as the government action was required to be "substantially related" to an "important government interest". This standard for intermediate scrutiny is similar to strict scrutiny, but the government's burden of proof is reduced.
Certain Types of Speech
Restrictions on certain types of speech that are regarded as less expressive than political speech (like commercial speech) are also subjected to intermediate scrutiny. For example, in NIFLA v. Becerra, an appeals court applied intermediate scrutiny to a California law requiring anti-abortion clinics to give notice that abortions are available elsewhere.
Levels of Scrutiny
The levels of scrutiny serve as a critical framework in constitutional law, shaping the interplay between individual rights and governmental authority. They establish a structured approach to judicial review, safeguarding fundamental freedoms such as speech and equal protection while enabling necessary government action. The level of scrutiny applied in a legal case depends on the type of law being challenged, the rights at stake, and the classification used by the law.
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Rational basis: the lowest level, applied to laws challenged as irrational or arbitrary
The rational basis test is the lowest level of scrutiny applied to challenged laws. Historically, it has required very little for a law to pass as constitutional. The burden of proof falls on the challenger of the law, who must prove one of the following statements to be true:
- The government has no legitimate interest in the law or policy.
- There is no reasonable, rational link between the government's interest and the challenged law.
Courts are highly deferential to the government under this test and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis—even if the government never provided one. The rational basis test typically applies to all laws or regulations challenged as irrational or arbitrary, as well as discrimination based on age, disability, wealth, or felony status.
The rational basis test is distinct from strict scrutiny, which involves claims that involve a suspect class or fundamental right, but still arise under the Equal Protection Clause or Due Process Clause. Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action. It holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is “narrowly tailored” to achieve that compelling purpose and that it uses the “least restrictive means” to achieve that purpose.
The three levels of scrutiny in constitutional interpretation are rational basis, intermediate scrutiny, and strict scrutiny.
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Safeguarding fundamental rights: levels of scrutiny protect freedoms like speech and equal protection
The three levels of scrutiny in constitutional interpretation are rational basis, intermediate scrutiny, and strict scrutiny. These levels are used by courts to determine the constitutionality of laws, regulations, or government actions that affect constitutional rights. They are a critical framework in constitutional law, safeguarding individual rights and shaping the interplay between these rights and governmental authority.
The lowest level of scrutiny is the rational basis test. This requires the challenger of the law to prove that the government has no legitimate interest in the law or that there is no reasonable, rational link between the government's interest and the challenged law. Courts are highly deferential to the government in this test and will often deem a law to have a rational basis as long as it can be conceived as rational. This test typically applies to laws challenged as irrational or arbitrary, as well as discrimination based on age, disability, wealth, or felony status.
The middle level of scrutiny is intermediate scrutiny. This level of scrutiny is invoked in cases of gender discrimination or classifications based on sex, as well as for restrictions on certain types of speech that are regarded as less expressive than political speech (e.g., commercial speech). Under intermediate scrutiny, the government must show that its actions are "substantially related" to an "important government interest."
The highest level of scrutiny is strict scrutiny. This level of scrutiny is applied when a law infringes upon a fundamental constitutional right, such as those found in the Bill of Rights, or when a government action involves a "suspect classification," such as race, religion, national origin, or alienage. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law is necessary to achieve a "compelling state interest," narrowly tailored to achieve that purpose, and that it uses the least restrictive means to do so.
The levels of scrutiny protect fundamental rights by ensuring that laws or government actions that infringe upon these rights are subjected to a higher level of scrutiny and must meet stricter requirements to be deemed constitutional. For example, in the context of freedom of speech, strict scrutiny may be applied to laws that discriminate on the basis of viewpoint, providing a strong defense for this fundamental right. Similarly, in the context of equal protection, strict scrutiny may be applied to laws that discriminate on the basis of race, national origin, or other suspect classifications, safeguarding the right to equal protection under the law.
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Upholding the balance of power: levels of scrutiny maintain a balance between legislative decisions and individual liberties
The three levels of scrutiny in constitutional interpretation are an essential tool for upholding the balance of power between legislative decisions and individual liberties. This spectrum of scrutiny, from rational basis to strict scrutiny, ensures that laws are assessed for their constitutionality and their impact on fundamental rights.
The lowest level of scrutiny is the rational basis test, which examines whether the government has a legitimate interest in the law and if there is a rational link between that interest and the law. Courts are highly deferential to the government in this test, often requiring only a conceivable rational basis. This level of scrutiny is applied to laws challenged as irrational or arbitrary, as well as discrimination based on age, disability, wealth, or felony status.
The intermediate level of scrutiny, or "quasi-suspect classifications," applies to cases involving gender discrimination or certain types of speech, such as commercial speech. The government must demonstrate a substantial relationship between its actions and an important government interest.
Strict scrutiny, the highest level, is applied when a law infringes upon fundamental constitutional rights or involves a "suspect classification," such as race, religion, national origin, or alienage. The burden of proof falls on the government to prove that the law is necessary to achieve a "compelling state interest" and is narrowly tailored to achieve that purpose using the least restrictive means.
The levels of scrutiny provide a structured approach to judicial review, ensuring that fundamental freedoms, such as speech and equal protection, are protected. They serve as a check on governmental authority, allowing necessary government action while safeguarding individual liberties. The scrutiny spectrum helps maintain a delicate balance between legislative decisions and individual rights, adapting to societal changes and evolving constitutional interpretations.
For example, in Craig v. Boren (1976), the Supreme Court applied intermediate scrutiny to a case of gender discrimination, finding that a law allowing females to purchase alcohol at a younger age than males did not withstand this level of scrutiny. In another case, Korematsu v. United States (1944), the Court applied strict scrutiny to race-based relocation and internment orders during World War II, upholding the government's actions despite their racial basis due to the "circumstances of direst emergency and peril."
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Frequently asked questions
The three levels of scrutiny in constitutional interpretation are rational basis, intermediate scrutiny, and strict scrutiny.
The rational basis test is the lowest level of scrutiny applied to challenged laws. The challenger must prove that either the government has no legitimate interest in the law or that there is no reasonable, rational link between the law and the government's interest.
Strict scrutiny is the highest level of scrutiny. It is applied when a law infringes upon a fundamental constitutional right or involves a suspect classification, such as race, religion, or national origin. The law is presumed invalid unless the government can demonstrate that it is necessary to achieve a "compelling state interest" and that it is narrowly tailored to achieve that interest.
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