What are the standards by which the government (through laws or actions) may infringe on individual rights?
The standards of judicial review constitute the standards that a court will employ when determining whether a law infringes upon an individual’s constitutionally protected rights.
There are generally three applicable standards:
- Rational Basis or Minimum Rationality
- Intermediate Scrutiny
- Strict Scrutiny
Next Article: Minimum Rationality – Standard of Review Back to: CONSTITUTIONAL LAW
How are the standards of judicial review applied?
Many laws, to some extent, infringe upon the rights of citizens. It is important to remember that the individual rights granted under the Constitution are extensive.
It is likely that all laws, to some extent, infringe upon those rights. Further, the Constitution protects ones rights from infringement by the Federal Government and, in most cases, the state governments.
The question then becomes, is law itself, or how it is applied, Constitutional?
This question arises and is subject to determination when individuals challenge the constitutionality of these laws in court.
As previously stated, one role of the judiciary is to determine the constitutionality of laws and the execution of those laws.
For a law to be constitution, or pass constitutional muster, it must meet a certain standard justifying its existence.
The standard that the court applies depends upon the rights infringed upon.
There are generally three applicable standards:
- Rational Basis or Minimum Rationality
- Intermediate Scrutiny
- Strict Scrutiny
Academic Research on Standards of Judicial Review
- Stone, Adrienne, The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication (July 19, 2010). Melbourne Univeristy Law Review, Vol. 23, No. 3, 1999. Available at SSRN: https://ssrn.com/abstract=1645007
- Pretorius, Jan, Accountability, Contextualisation and the Standard of Judicial Review of Affirmative Action: Solidarity obo Barnard v South African Police Services (2013). The South African Law Journal 130(1) 2013. Available at SSRN: https://ssrn.com/abstract=2649972
- Huq, Aziz Z., Tiers of Scrutiny in Enumerated Powers Jurisprudence (June 24, 2013). U of Chicago, Public Law Working Paper No. 432. Available at SSRN: https://ssrn.com/abstract=2284250 or http://dx.doi.org/10.2139/ssrn.2284250