The default and lowest standard of review for constitutional questions in the US is "rational basis review". Higher standards are required, if fundamental rights or suspect classifications are at issue. As Cornell summarizes the situation, "to pass rational basis review, the challenged law must be rationally related to a legitimate government interest". Assuming a law which is not subject to higher review, it could fail rational basis review if the identified government interest is not legitimate (the cases of interest here), or if the interest is legitimate but the law is not rationally related to that interest.

An example of upholding a "legitimate government interest" is Christian Legal Society Chapter v. Martinez, where a UC anti-discrimination requirement was objected to on First Amendment grounds, and the court rejected that argument, finding that "The all-comers policy is a reasonable, viewpoint-neutral condition on access to the RSO forum; it therefore does not transgress First Amendment limitations" – the court found the university's policy to be rational, indeed "creditworthy".

My question is, has any ostensive government interest ever been found by a court to be illegitimate? The test would be a case not involving triggers for higher review, where the law was overturned, and the failure was because the interest was deemed to be illegitimate (not because the law isn't rationally related to the interest).

I specifically want to exclude any cases where the matter does involve suspect classifications or fundamental rights, but where the court employs a rhetorical flourish and says "This wouldn't even pass rational review", or otherwise declines to focus primarily on existing triggers of higher-level review. An example of a kind of case that doesn't clarify the matter is St. Joseph Abbey v. Castille, 712 F.3d 215. Although the court concludes "The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none", the ruling also starts by saying

The district court enjoined their enforcement, finding that they deny equal protection and due process of law. We will AFFIRM the judgment of the district court.

They do not say that the interest is illegitimate. (My underlying hypothesis is that there are no cases of low-review where a government interest is held to be illegitimate, implying that all government interests are legitimate).

The case of US v. Morrison adds a complication to the question. In that case (cited in this answer), a law granting federal civil remedy to victims of gender-motivated violence was struck down. The original belief of Congress was that the law would be allowed under the Commerce Clause and the 14th Amendment. The court in its opinion set forth a fundamental constitutional limit on what the federal government can do:

Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison

The court did not go any further in pointing to a specific clause in the Constitution (e.g. the 10th Amendment). Likewise in Marbury v. Madison, the constitutional limit on government is captured in the statement

The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

The Morrison court then rejected the claim that there is such constitutional authority. This puts the case into the "strict scrutiny" basket. Similarly, in US v. Lopez, an anti-gun law (ostensively authorized by the Commerce Clause) was overturned because "The Act exceeds Congress' Commerce Clause authority", and accepting the government's position "would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States" – a 10th Amendment issue.

The complication then is that a court has available a tool for upping the level of scrutiny, if it can be found that there is no constitutional authority for a particular law. The concept of "legitimate interest" could then be dispensed with entirely (although it certainly does exist in the case law, in the affirmative but apparently not in the negative).

An observed in Wes Sayeed's answer, one prong of rational basis analysis is whether a law exceeds authority, and a lesser question (the one I focus on) is

Whether or not there is an articulatable need for the law to exist (the Congress/Legislature does not have to justify its reasons for a law but it usually does, and that reason is presumed valid regardless of how it's contrived).

I am looking for evidence that this lesser prong actually exists, and distinguishes possible vs. impossible laws. Or, is every case of "not a legitimate government interest" elevated to the status "not a constitutionally-granted power"? Even more briefly, is "legitimate interest" just another way of saying "constitutional power"? J. Stevens concurring in NY Bd. of Elections v. Lopez Torres states that

as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.”

I have not located a relevant majority opinion which upholds this conclusion.

  • Logically, the absence of a finding of illegitimacy doesn't imply that all government interests are legitimate; for example, it could be that no court was ever asked to rule on the legitimacy of an illegitimate purported government interest without being able to sidestep the question by deciding the case otherwise.
    – phoog
    Jun 30, 2017 at 23:03
  • I'm looking for evidence for a known lower bound, which would show that there exists any such limit. Until evidence of such a limit exists, we can't logically say that there must be one.
    – user6726
    Jul 1, 2017 at 0:52

4 Answers 4


This is a bit sideways of your question, but the Supreme Court has held that "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) later cited in Romer v. Evans, 517 U.S. 620, 634-635 (1996).

  • 4
    And, FWIW, almost all of the exceptions to "legitimate governmental interest" that are likely to be taken seriously by a court are specific motives that are not legitimate, rather than flowing form a meaningful positive definition of what is a legitimate government interest.
    – ohwilleke
    Jan 27, 2021 at 19:57

If there is no legitimate government interest behind a policy enacted by, say, a state legislature, that doesn't necessarily mean they were pursuing a government interest and that interest was illegitimate. It means the policy they were pursuing was not found to be what is considered a legitimate government interest.

It is not true that all government interests are legitimate. The courts do, however, defer to the legislature under this standard. They assume the legislature acts rationally and, thus, the ends it pursues are legitimate. However, the opposite is a finding that an action is "not rationally related to any conceivable legitimate end of government."

An example is that state laws distinguishing between residents who have lived there a long time or a short time - these should be struck down because they have no rational relationship to any legitimate state interest. Also, consideration of a school's psonsoring of extracurricular activities would also fall under the legit government interest (in this case, an example is a public school's interest of encouraging tolerance and promoting leadership skills by funding student groups which only adhere to a policy by which everybody is welcome to join [see Christian Legal Society Chapter v. Martinez).


The legal standard of legitimate government interest is a surprisingly high bar because it's very subjective and courts traditionally preume that all legislative acts are rational, placing the burden on the plaintiff to show that it's not.

Essentially, the rational basis test only asks:

  • Whether or not the government has the authority to regulate the matter at hand (derived from one of its enumerated powers).

-- and to a lesser extent:

  • Whether or not there is an articulatable need for the law to exist (the Congress/Legislature does not have to justify its reasons for a law but it usually does, and that reason is presumed valid regardless of how it's contrived).

An example of where the government failed to meet this standard can be found in United States v. Morrison. At issue was a provision in the 1994 Violence Against Women Act that allowed women to file civil suits against their attackers in federal court.

In the case, a lawsuit was filed against a Virginia Tech student for allegedly raping a fellow female student during a sexual encounter on campus. A state grand jury found insufficient evidence of a crime and no charges were filed against him, but she sought civil damages in federal court under the VAWA. The case worked it's way up to the Supreme Court.

While the majority opinion of the court did not specifically use the words rational basis, they applied the standard's definition when they ruled that provision unconstitutional.

Basically, Congress justified the Act on economic grounds and argued that it has the power to do so under the commerce clause of the Constitution. The court held that violence against women -- while horrible I might add! -- is not an economic activity, and only had an "attenuated" [loosely connected] effect on interstate commerce when taken in aggregate because individual crimes are local matters for local government to handle (no interstate aspect).

In other words, the federal government does not have a legitimate interest (i.e. no authority) to regulate non-economic, non-interstate issues.


Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 143 U. S. 344-345

it states

...Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the Court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of Courts.

It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.

it would seem that from the above that the courts do have a capacity to determine what is legitimate rests on what is constitutional. But this feels a lot like finding a baked crust and calling it a pie. It is clear that there are extant unenumerated fundamental rights. The issue then is getting the courts to acknowledge them. Just look at all the nonsense required for the 'right to privacy' to be understood by the courts. This shows a bath faith assumption to the courts or any officer to have an 'oath to support the constitution' which clearly should be understood as an 'oath to support life, liberty, and the pursuit of happiness.'

One might need to look at other law than just constitutional, such as treaty law (Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery) which the US is bound to, which reads:

(a) "Slavery" means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and "slave" means a person in such condition or status;

from the text, it reads "any or all powers attaching to the right of ownership"

The quandary posed in this context is "does a government have, or can it be granted the authority to exercise powers that attaches to the right of ownership over a person by mere writ, and should such action by default always be declared legitimate"

I think the problem you are trying to solve is if there is a coherent, sound, and valid logical framework to describe a justifiable excuse to infringe, abridge, abrogate, severe, or divorce a person from exercising powers of ownership over their own person or property in a general or special case.

Some powers that attach to the right of ownership clearly are withholding (privacy), disposal, alteration, transfer, or other forms of control.

there is any number of recognized state crimes that flow out from an analysis of the above. I understand if you see it as mere legal conspiracy, yet it is logically sound. the mere veneer of votes and process doesn't obviate the fundamental facts.

The reality is that anyone can name any number of personal crimes and state crimes that are both cognizable and judiciable by some other legal test, yet would still be recognizable under the above for the same essential elements even if the wording is different.

the real problem I see is that in people's minds, slavery means 'chains and collars' but such a bias is clearly historically and legally wrong.

As a thought experiment:

A) A private party has a daughter. That woman is then 'disposed of' as if 'property' for the purpose of marriage. This person is clearly subjected to 'slaver' as recognized by the treaty law and federal law. See text: Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

B) A law is created that particularly 'identifies' women as having the 'duty' to 'marry'. This is clearly an unconstitutional writ of attainder.

In case 'A', the private party is 'disposing of' another person, while in the case 'B', it is the government. In both cases the elements are the same, only the veneer is different.

  • -1 This is an interestinmg case, but I think it does not at all address the question posed. Jan 27, 2021 at 21:45

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