#STRICT SCRUTINY VS RATIONAL BASIS HOW TO#
#STRICT SCRUTINY VS RATIONAL BASIS SERIES#

However, Barnett and others have argued this multitiered approach to rights protection was not always predominant in constitutional jurisprudence. In the words of professor Randy Barnett, infringements on economic liberty are routinely upheld so long as a court can “identify any hypothetical reason for why a legislature might have enacted the restriction.”

In practice, rational basis review is even more watered down than it appears on paper. In contrast, other rights-like economic liberty rights-are accorded a lesser level of protection known as “rational basis” review, which merely asks whether a law is “rationally related” to a “legitimate” government interest. This requires an inquiry into both the goals of the infringing law and the means the law adopts to achieve those goals. In order for a government to infringe upon these “fundamental” rights, it must have a compelling interest and adopt the least intrusive means to advance that interest. Under current constitutional jurisprudence, certain types of recognized rights-so-called “ fundamental rights”-receive more robust judicial protection (known as “strict scrutiny”) than other rights.

#STRICT SCRUTINY VS RATIONAL BASIS HOW TO#

The fight over how to treat economic liberty under the Constitution has been as lengthy as it has been acrimonious. Part two will explore the differing levels of constitutional scrutiny that economic regulations have received during our nation’s history.

#STRICT SCRUTINY VS RATIONAL BASIS SERIES#

The first part of the series analyzed the reasoning used by the South Carolina Supreme Court in reaching its decision. R Street Institute fellow Jarrett Dieterle takes an in-depth look at case in this three-part blog series. The Court held that the law’s sole justification was economic protectionism, which made it an improper use of the state’s police powers to regulate alcohol. Recently, the South Carolina Supreme Court issued a decision striking down a state law that limited the number of liquor retail outlets that a single owner could operate within state boundaries.

Strict scrutiny vs rational basis