Skip to main content

Least Restrictive Means Test


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.

Cite this article
Pick a style below, and copy the text for your bibliography.

  • MLA
  • Chicago
  • APA

"Least Restrictive Means Test." Encyclopedia of the American Constitution. . 18 Sep. 2018 <>.

"Least Restrictive Means Test." Encyclopedia of the American Constitution. . (September 18, 2018).

"Least Restrictive Means Test." Encyclopedia of the American Constitution. . Retrieved September 18, 2018 from

Learn more about citation styles

Citation styles gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).

Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.

Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, cannot guarantee each citation it generates. Therefore, it’s best to use citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:

Modern Language Association

The Chicago Manual of Style

American Psychological Association

  • Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
  • In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.