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1、Note: Numbers in brackets refer to the printed pages of the Emanuel Law Outline where the topic is discussed.Emanuel Law OutlinesConstitutional LawChapter 1INTRODUCTIONI. THREE STANDARDS OF REVIEWA. Three standards: There are three key standards of review which reappear constantly throughout Constit
2、utional 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. 21. Mere rationality: Of the thr
3、ee 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 gover
4、n mental 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 requirem
5、ent, 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 standa
6、rd 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); andb. Necessary means: Second
7、, 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. (Its not enough that theres a rational relation between the means and the end, which is enough under the mere rationality standard.)i.
8、 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 governments objective just as well.3. Middle-level review: In between these two review standards is so-called middle-level re
9、view.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 stan
10、dard is half way between rationally related and necessary).B. Consequences of choice: The courts choice of one of these standards of review has two important consequences: 31. Burden of persuasion: First, the choice will make a big difference as to who has the burden of persuasion.a. Mere rationalit
11、y: 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 t
12、he 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, its not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the gove
13、rnment.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 stru
14、ck 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, theres roughly a 50-50 chance that the governmental action will b
15、e struck down.a. Exam Tip: So when youre writing an exam answer, youve got to concentrate exceptionally hard on choosing the correct standard of review. Once youve determined that a particular standard would be applied, then you might as well go further and make a prediction about the outcome: if yo
16、uve decided that mere rationality applies, you might write something like, Therefore, the court will almost certainly uphold the governmental action. If youve chosen strict scrutiny, you should write something like, Therefore, the governmental action is very likely to be struck down.C. When used: Here is a quick overview of the entire body of Constitutional Law, to
