The Most Effective or Least Restrictive Alternative as the Only Intermediate and Only Means-Focused Review in Due Process and Equal Protection
![handle is hein.journals/vllalr33 and id is 125 raw text is: 1988]
THE MOST EFFECTIVE OR LEAST RESTRICTIVE
ALTERNATIVE AS THE ONLY INTERMEDIATE
AND ONLY MEANS-FOCUSED REVIEW
IN DUE PROCESS AND EQUAL
PROTECTION
Roy G. SPECE, JR.*
TABLE OF CONTENTS
I. INTRODUCTION ......................................... 112
II. THE COURT'S CURRENT DOCTRINE .................... 118
III. THE FIVE LOGICAL COMPONENTS OF STANDARDS OF
REVIEW AND THE CATEGORIES OF ENDS AND MEANS
SCRUTINY .......................................... 12 1
A. The Five Components, Continua of Each and the
Range of Possible Tests ........................... 121
B. The Five Components Can Only Be Divided Into Two
Sufficiently Distinct Categories: Means and Ends
Scrutiny ........................................ 122
1. Ends Scrutiny ................................ 122
2. M eans Scrutiny .............................. 124
3. Burden of Proof .............................. 125
IV. THE THREE CONTEMPORARY TESTS AND THE CATEGO-
RIES OF MEANS AND ENDS SCRUTINY .................. 127
A. What State Interests Are Relevant? ................. 127
B. (i) The Nature or Import Required of Ends the State
Uses to Justify Its Actions and (ii) the Connection
Required Between Those Ends and the Means Used to
A ttain Them .................................... 130
1. State Ends: However Construed, Compelling
and Important Are Indistinguishable and Thus
Cannot Differentiate the Compelling State Interest
and Intermediate Tests ........................ 132
* Professor of Law, University of Arizona College of Law. J.D. 1972, Uni-
versity of Southern California Law Center.
Thanks to John E. Nowak, University of Illinois College of Law, Michael H.
Shapiro, University of Southern California Law Center and my University of Ari-
zona colleagues Robert Glennon, Kenney Hegland and David Wexler for their
many helpful comments regarding earlier drafts of this article.
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