Rational Basis or Strict Scrutiny

In the United States courts exercise the power of judicial review over the actions of other governmental bodies. They may determine whether an act by the President, Congress, a national, state, or local administrative official, a state legislature, a local governing board, or a lower court is valid. They do not judge whether an act is wise or foolish, but whether it is constitutional or unconstitutional, whether it is permitted or null and void. The U.S. Constitution prescribes the legitimate powers of the national government, reserves others to the states, and protects individuals from governmental invasion of their freedoms of religion, speech, press, and other rights.

Based upon the interpretation of Article VI, clause 2, by Chief Justice John Marshall in Marbury v. Madison, (1803), judges may invalidate a government's action if the power for it is not prescribed in the Constitution, or if it conflicts with a right of the people. Of course the power does not have to be expressly delegated to the national government; it may be implied from Article I, section 8, clause 18, the "elastic clause." See Chief Justice John Marshall again in the opinion of McCulloch v. Maryland, (1819)

In Lyng v. Northwest Cemetery Protective Association the question was whether the Forest Service had the power to build a road and execute its forest management plan, i.e., harvest timber, under the authority of Article IV, section 3, clause 2, or if such action conflicted with the rights of persons to the free exercise of their religion guaranteed by the second clause of the First Amendment.

The Court concluded that the road and timbering were internal government affairs that only incidentally affected the free exercise of religion. Therefore, the Court applied the so-called rational basis test of judicial review. That is, it upheld the government's action as a rational means of accomplishing a legitimate end. If, however, the Court had deemed there was a threat to a fundamental right, it likely would have increased its scrutiny of the government's action, requiring that the means be necessary to achieve a compelling state interest. In other words the Court in Lyng deferred to the government's use of National Forest property. It upheld the decision to build the road so long as it was a reasonable means to achieve a legitimate purpose. The road did not have to be necessary to achieve a compelling state interest. See footnote 4 in then-Associate Justice Harlan F. Stone's opinion of the Court in U.S. v. Carolene Products, 304 U.S. 144 (1938).

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