Rational Basis Test
This is Normal Constitutional Law (this is the minimal test):
Each time government takes action it must:
1. Possess a Legitimate Governmental Interest (i. e. the ENDS
being pursued by government must be legitimate…)
o That is, for the government to pursue or adopt an action, it
must have a legitimate interest in doing so.
o With federal government, that is easy, i.e. the Congress
must have the authorization to act in Art. 1 § 8 (or
elsewhere)
2. Adopt means that are rationally related to the pursuance of
the legitimate governmental interest… (The Means chose to
pursue the ENDS must conceivably be pursuing those
ends…)
e.g. The government’s statute which is passed to pursue the
government’s legitimate interest must be (conceivably)
rationally related to the pursuance of that government interest,
or that end
which the government is authorized to pursue…
3. In this normal constitutional law, a presumption of
constitutionality exists, that is, the courts presume the
government law is to be constitutionally legitimate, and the
burden rests on the plaintiff to demonstrate that the statute or
ordinance is unconstitutional, i.e. that there exists no legitimate
interest or rational basis or relationship for the means
pursuing the espoused legitimate interest of the state.
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Strict Scrutiny Test
Strict judicial scrutiny is activated if either:
A. A Fundamental Right is at issue
(i.e. a fundamental right is one which is explicitly or
implicitly in the text of the Constitution)
OR
B. A Suspect Class (is involved)
(A Suspect class is a classification of people by the
government for differential treatment based on an
immutable characteristic…)
If either a fundamental right or a suspect class is at stake, then
the court activates strict judicial scrutiny, where:
(A) The presumption of constitutionality shifts, and the
burden is on the government…
(B) The Government must demonstrate that it has a Compelling
Governmental Interest
AND
(C) Old formulation: the means ( e.g. the statutory scheme)
employed by the government must be the least injurious to
the suspect class or the fundamental right
(D) Modern formulation: the means employed by the government
must be narrowly tailored in the pursuance of the compelling
governmental interest so that it does not abridge more of the
fundamental right than necessary or injure the suspect class
more than is necessary to accomplish the compelling
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governmental interest.
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(Students: Hold off learning this portion yet.)
Substantial Relationship Test
Substantial Relationship Test
(this is “heightened scrutiny”—applies when different treatment
given on the basis of the sex of the person, etc.)
The Government must demonstrate:
 It is pursuing an Important Governmental Interest
 Means must be substantially related to the government’s
important interest
Notice, burden resides with the state. The presumption of
constitutionality is gone.
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