Least Restrictive Means Test

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When the Supreme Court, in reviewing the constitutionality of legislation, uses the permissive rational basis standard, it demands only that a law be a rational means for achieving a legitimate governmental purpose. When the standard of review is more exacting, however, the Court looks more closely at the legislative choice of means, insisting on more than some minimal showing of rationality. In a sex discrimination case, for example, the legislation must be "substantially related" to achieving some important governmental purpose; when strict scrutiny is the appropriate standard of review, the law must be "necessary" to achieving a compelling state interest. However such a heightened standard of review may be phrased, it aims at providing as much protection for constitutional values and interests as may be consistent with the accomplishment of legislative goals. One commonly used formulation of this aim is the Court's insistence that legislation be the "least restrictive means" for attaining the ends the legislature seeks—that is, least restrictive on such constitutionally protected interests as the freedom of speech, or equality, or the free flow of interstate commerce.

Some commentators have urged the Supreme Court to use a similar analysis in testing the reasonableness of legislative means even under the "rational basis" standard of review, as in cases involving challenges to economic regulation. Thus far, however, the Court has employed "least restrictive means" reasoning only when it has consciously used a more demanding standard of review. Thus, in dean milk company v. madison (1951), the Court struck down an ordinance specifying that milk sold in the city as "pasteurized" be pasteurized at an approved plant within five miles of the city center. The Court emphasized that "reasonable nondiscriminatory alternatives" were available to serve the city's health interests. (See state regulation of commerce.) And in Shelton v. Tucker (1960) the Court invalidated a law requiring every Arkansas teacher to file an annual affidavit listing every organization to which he or she had belonged or made contributions within five years. The Court agreed that Arkansas had a strong interest in teacher fitness, but said the legislature's sweeping intrusion into associational privacy "must be viewed in the light of less drastic means for achieving the same basic purpose." A narrower inquiry, presumably, would serve that purpose.

Both decisions illustrate how the "least restrictive means" formula can help a court avoid casting aspersions on legislative motive. (See Legislation; Legislative Intent.) Madison's ordinance might have been designed to capture the pasteurization business; Arkansas undoubtedly was seeking to expose and dismiss teachers who were members of the NAACP. In neither case did the Supreme Court openly question the legitimacy of the legislative purpose; taking the government's statement of objective at face value, it said, in effect, "There are ways you could have accomplished that without intruding on constitutionally protected ground." One excellent reason for heightening the standard of review—and thus for insisting on "least restrictive means"—is the suspicion that legislators have acted for questionable purposes.

(See suspect classification.)

Kenneth L. Karst


Note 1969 Less Drastic Means and the First Amendment. Yale Law Journal 78:464–474.