The Less Restrictive Alternative in Constitutional Adjudication: An Analysis, A Justification, and Some Criteria
The past two decades have witnessed enormous changes in both substantive constitutional law and the courts' approach to constitutional questions. The frequent application of the doctrine of less restrictive alternatives has been a factor of increasingly significant proportions in effecting these changes. Although the doctrine has long been part of our jurisprudence,' it did not begin to have a serious impact until the Warren Court years, and, despite its widely diversified use today, the concept is almost always applied without discussion. Succinctly and broadly stated, the doctrine requires that a state not employ a specific means to accomplish an admittedly legitimate purpose if it has available alternative means that are less restrictive upon some individual interest. The nuances of the doctrine are of course manifold, and it has been variously titled "less drastic means," "the reasonable alternative," "the less intrusive alternative,"' "precision of regulation," and "necessity."' In accordance with common usage, these titles will be used interchangeably in this Note.'
This Note has a three-fold purpose. Part I will examine the case law to decipher through inductive and comparative analysis how the doctrine has been applied in several areas of constitutional law. Part II will attempt to deduce whether a court's scrutiny of legislative alternatives is consistent with the proper scope of judicial review. Part I will then proceed under the conclusion that such scrutiny is consistent and will develop criteria and standards for principled application of the doctrine. The focus there will be upon the extent to which the Court should pursue alternatives, defer to legislative judgments, or follow its own assessments.
Robert M. Bastress, Jr.,
The Less Restrictive Alternative in Constitutional Adjudication: An Analysis, A Justification, and Some Criteria,
27 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss5/3