Free tool · Constitutional Law
Strict, Intermediate or Rational Basis?
When a law is challenged as unequal or as burdening a right, courts apply one of three levels of scrutiny. Strict scrutiny applies to classifications based on race and national origin, to state classifications based on alienage and to laws that burden fundamental rights: the government must show a compelling interest and narrow tailoring. Intermediate scrutiny applies to classifications based on sex and birth outside marriage: the law must be substantially related to an important interest. Everything else gets rational basis review, which the law usually survives. Choose the classification or the right to see which test applies.
Tool · Level of Scrutiny Selector
Strict scrutiny
The test: The classification must be narrowly tailored to achieve a compelling government interest, and the means must be the least restrictive available.
Who bears the burden: On the government.
- The actor is the government.
- The classification is based on race or national origin: suspect.
For example: A law that treats people differently because of their race (Loving v Virginia; Korematsu, applying strict scrutiny, upheld the exclusion; the decision has been repudiated).
Simplified doctrine for learning. The categories, and the cases that define them, change over time and are applied with variations by different courts.
Picks the level of judicial scrutiny (strict, intermediate or rational basis) that applies to a government classification or a burden on a right, and says what the test demands and who bears the burden. Simplified doctrine; the categories, and the cases that define them, change over time. A teaching aid, not a prediction and not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- Say whether the government (state action) is involved.
- Choose the classification or the right at stake.
- Say whether there is discriminatory purpose or only a disparate effect.
- Read the test, the burden of proof and an example.
Common questions
Who has the burden of proof under strict scrutiny?
The government. Under rational basis review the burden is on the challenger, who must negate every conceivable rational basis.
Does disparate impact trigger strict scrutiny?
Not by itself. A facially neutral law that merely has a disparate effect on a group receives strict scrutiny only if the plaintiff proves a discriminatory purpose (Washington v Davis).
Is affirmative action subject to strict scrutiny?
Yes, under the Court’s decisions, race-conscious measures are subject to strict scrutiny even when they are meant to help a minority group.
Learn the law behind the tool
This tool is part of our Constitutional Law course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Constitutional Law: Equal Protection and Due Process.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.