Professor Harpaz

Constitutional Law


In analyzing the typical constitutional claim, there are a series of three steps that must be followed in a logical sequence.

1. The first step is to specify the nature of the constitutional claim. This includes the character of the government overreaching and the constitutional provision(s) allegedly violated (e.g., racial discrimination engaged in by the federal government in violation of the equal protection component of the Fifth Amendment Due Process Clause; state interference with a fundamental right in violation of the Fourteenth Amendment Due Process Clause; state discrimination against interstate commerce in violation of the dormant aspect of the Commerce Clause; state discrimination against out of state residents in violation of the Privileges and Immunities Clause of Article IV, etc.).


2. The second step is to identify the abstract criteria used to evaluate a constitutional claim of the kind asserted. These abstract criteria are embodied in a "standard of review." A standard of review is a test created to distinguish between constitutional exercises of government power and unconstitutional exercises of government power. The test identifies the dividing line between the constitutionally acceptable and the unconstitutional. If the government action passes scrutiny under the standard of review, the government has respected the limitations placed on its authority by the Constitution. The standard of review may also be referred to as the "level of scrutiny," the "test" or the "standard." The standard of review must be determined before a court can consider the facts of a particular case. A court at this stage is identifying general constitutional principles which it will use to resolve a case of the type it has before it. The selection of a standard of review is a critical stage in constitutional analysis and is often a subject of disagreement between the parties to the action because the standard selected can often make the difference between victory and defeat. The party raising the constitutional claim will try and present arguments for the strictest standard of review available under the circumstances in order to make it difficult for the government to justify its action. The government, by contrast, will try and present arguments for the most lenient level of scrutiny available under the circumstances so that its burden of justification is much lighter.

3. The third step is to apply the standard of review to the particular facts of the case. This may involve an analysis of the government's reasons for its action, including the nature of the problem the government is trying to solve, what the government hopes to achieve by the solution it has devised and the connection between what the government is trying to achieve (the ends) and what it has done (the means). In general, the sounder the connection between the governmental ends and means, the more likely a court will be to find the government has acted in a constitutional manner.

4. A single government act can provide the basis for several different constitutional claims. Each claim must be considered separately, following the three steps described above.