Big Fat Con Law Outline - Con Law Outline I Small Sidenote...

Con Law Outline
I. Small Sidenote about standards of review:
A. Mere rationality
1. Two requirements:
a) Legitimate governmental objective- health, safety, general welfare
b) Minimally rational relation between means chosen and objective
(1) Extremely easy to satisfy
(2) Must show government acted arbitrarily and irrationally
c) Main test used in the Dormant Commerce Clause
B. Strict Scruitny- tough titty!
1. Two requirements:
a) Compelling objective-
b) Necessary means- “fit” between the means and end is tight dawg
(1)
There can be no less restrictive means available to achieve the
government’s objective as well
(2) Suspect classifications- race, national origin, sometimes alienage
(3) Freedoms of expression, religion, free exercise
(4) Substantive due process/fundamental rights
(a) If no fundamental right is affected, ask whether the gov act violates
substantive due process.
(b) Rationally related means are not violated by substantive due process
clause.
C. Middle-level Review
1. Government objective must be important or compelling and means implemented
must be substantially related
THREE STANDARDS OF REVIEW IN CONSTITUTIONAL LAW
A. Rational Basis Review : Least strict standard of review
1. Def: The court applies a “mere rationality” standard. If rational, the
court will uphold the government action.
* Often used in Commerce Clause and Dormant Commerce Clause
cases.
2. Test under Rational Basis Review: Both tests must be met for the statute to be
OK.
1. Legitimate Government Objective :
2. Rational relation between the means chosen by the government to
address the problem and the government objective in passing the statute.
• Std is met as long as the government action is reasonable.
3. Under Rational Basis Review, the Court usually upholds the Govt.
action as long as there is some sign that the government was acting
reasonably. Any arbitrary and irrational action by the Govt. will not be
upheld by the Court.
4. Burden of Persuasion : The individual attacking the govt. action has
the burden of persuading the court that the govt. action is unconstitutional.

B. Undue Burden Std. of Review: The middle-level standard of review.
* Often used in constitutionally protected liberties, such as Abortion.
1. Test under the Undue Burden Std. of Review: To be constitutional:
1. The government must have an important objective or interest in the
matter?
2. The govt. action can’t place an Undue Burden or Substantial
Obstacle in the path of the person exercising his or her right.
2. Burden of Persuasion : In the undue burden std, the burden of
persuasion will often be on the Government to prove it is not placing an
undue burden upon a person’s opportunity to exercise his or her right.
3. Strict Scrutiny Std. of Review: Most difficult to overcome:
* Often used for fundamental rights, such as the right to privacy:
birth control, live with your family, sex among married people, right to
marry.