Title

Finding New Constitutional Rights through the Supreme Court’s Evolving “Government Purpose” Test under Minimum Scrutiny

Authors

John H. Ryskamp

Abstract

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is sustained if it is rationally related to a legitimate government purpose. That has seemed hopelessly vague. However, through a series of cases the Supreme Court has now made it clear that the three prongs of the test—rationality, relationship and government—are questions of fact for the trier of fact. This opens up the possibility that civil discovery can show, with respect to criteria for these prongs, that government fails to meet minimum scrutiny. Actually, the tendency of the Court’s minimum scrutiny jurisprudence is to severely disfavor discretion, and strongly favor factual showing, in minimum scrutiny adjudication.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Consumer Protection Law | Criminal Law | Economics | Education Law | Elder Law | Environmental Law | Evidence | Housing Law | Human Rights Law | Labor and Employment Law | Land Use Law | Law | Law and Economics | Law and Society | Litigation | Medical Jurisprudence | Natural Resources Law | Property Law and Real Estate | Taxation-Transnational | Tax Law | Water Law

Date of this Version

May 2006