Order Matters: Examining Standards of Review on Essays

When analyzing strict scrutiny, intermediate scrutiny, or rational basis in a Constitutional Law essay, it’s critical to examine the government interest first before discussing the fit. However, students sometimes jump straight into whether the law is “narrowly tailored,” "substantially related," or “rationally related.” But doing so is backward if you haven’t identified the government’s interest first.

Each standard of review is a two-step inquiry:

1️⃣ First, what is the government’s interest?

• Strict Scrutiny: The government interest must be compelling.

• Intermediate Scrutiny: The government interest must be important.

• Rational Basis: The government interest must be legitimate.

2️⃣ Does the law fit the interest?

• Strict Scrutiny: The law must be narrowly tailored to the interest.

• Intermediate Scrutiny: The law must be substantially related to the interest.

• Rational Basis: The law must be rationally related to the interest.

What Happens If You Do This Out of Order?

If you start by discussing whether the law is “narrowly tailored” (for strict scrutiny) or “rationally related” (for rational basis) before identifying the interest, your discussion is necessarily out of order. The fit depends on the interest. You can’t determine whether a law is tailored or related to a compelling or legitimate interest if you haven’t even identified what that interest is!

The good news is that there's an easy fix.

On essays, force yourself to write about the government’s interest first. Then, analyze the fit. A simple way to check yourself is to write out both prongs in your rule statement before applying them in your analysis.

Example:

✅ Step 1: “Under [strict scrutiny / intermediate scrutiny / rational basis], the law must be [narrowly tailored / substantially related / rationally related] to achieve a [compelling / important / legitimate] government interest.

✅ Step 2: "Here, the government’s asserted interest is [insert interest]. This interest is [compelling / important / legitimate] because [explain why].

✅ Step 3: “The law is [narrowly tailored / substantially related / rationally related] to this government interest because [explain why]”

By following this structure, you ensure your analysis addresses both prongs of the standard of review and is logically sound and persuasive—just what graders are looking for.