Constitutional Law 101
The U.S. Constitution is there to protect our rights and freedoms, but so often we as Americans disagree on what it means. Part of the challenge is that the Constitution states our rights so briefly and succinctly, there’s plenty of room for interpretation and argument.
For example, the First Amendment says “no law shall abridge the freedom of speech.” But what’s free speech?
Can I accuse someone of murder when I know it’s a lie? Can I record myself reading a Harry Potter book and sell it to whoever I want? Almost everyone will universally agree that that isn’t okay, or even permitted under the law. So what gives?
Why Isn’t the Constitution Straightforward and Absolute?
The Constitution is (kind of) the first legal document in the United States, and most laws in the US interact with the Constitution in some way. Can you imagine if every time you went to court, you had to pay some lawyer $500 an hour to argue about whether the law at issue somehow, some way, violated the clause “no law shall abridge the freedom of speech”? What about freedom of the press? And freedom of religion? And every other phrase that could be interpreted a million different ways? The law wouldn’t matter, because nobody could afford to relitigate the entire history of the United States every single time.
To solve that problem, courts have developed guidelines over time for understanding what each of those things mean. These guidelines are often referred to as the invisible “gloss” over the text of the Constitution; they’re like a lens through which lawyers and judges read the document. If you just read the document without the lens, you’ll miss a lot of the reasoning behind major Supreme Court decisions.
Did you know, for example, that the right to privacy isn’t actually explicitly granted in the Constitution? After hundreds of years of developing gloss, the Supreme Court realized that a ton of the rights in the Constitution are based on a right to privacy.
The “Levels of Scrutiny” Gloss
One of the many ways judges decide whether a law is constitutional is through something called “levels of scrutiny”. It’s kind of like a danger indicator, like a yellow flag at the beach, or a diamond on a ski slope; it tells a judge “how dangerous is this law to the Constitution?” It tells judges where to start when someone claims a law violates their constitutional rights.
Here is a quick look at the levels of scrutiny.
Strict Scrutiny: Laws that Directly Address Fundamental Rights
Sometimes a law so obviously competes with a constitutional right that the law is almost automatically not allowed. A law like that will get a “strict scrutiny” analysis. For example, if a law affects a fundamental right like voting, or distinguishes between people based on race. This kind of law is unconstitutional unless it’s “narrowly tailored to meet a compelling government interest.”
A “compelling government interest” is usually something that you can understand based on common sense, but it’s really derived from the “rights” of the government itself. It’s easy to forget that the Constitution isn’t just about people’s freedoms, it also says what the government is allowed to do regardless of people’s freedoms. A “compelling government interest” is where a “right” of the government is important to enforce despite the rights of people. A law being “narrowly tailored” is like it sounds, a law facing strict scrutiny can’t use the compelling interest as an excuse to trample all over people’s rights.
For example, the government does have a compelling interest in preventing violence (that’s why gun regulations are legal), but that doesn’t mean that the government can outlaw violent books to prevent violent ideas from spreading. In that example, the government does have a compelling interest, but a law against violent books isn’t narrowly tailored enough. Instead, the government can outlaw the possession of weapons by violent criminals – a narrowly tailored law that only affects the compelling government interest and doesn’t unnecessarily overlap with other rights (like freedom of speech). An example of the opposite problem would be the government making it illegal to draw cats using pens. In that case, the law is narrowly tailored, but there isn’t a compelling government interest in preventing cat drawings.
That’s why if a law triggers strict scrutiny it’s likely to end up being unconstitutional. It’s hard to show that a law has both a compelling government interest and is narrowly tailored to achieve that interest. However, some laws do survive strict scrutiny, even if the law seems to infringe on a person’s constitutional rights (for example, a convicted criminal’s right to be free is suspended all the time).
Intermediate Scrutiny: For Less Suspect Laws
This test is more forgiving, so it’s used for laws that are slightly less suspect. Where strict scrutiny is kind of understandable just using common sense, intermediate scrutiny is for issues that are a little harder to pin down: where you might see how an argument can be made that the issue is fundamentally important. For example, the regulation of adult entertainment kind of implicates free speech rights, and whether you agree or not, it’s easy enough to see the argument that regulations like that affect fundamental rights. Regulations on the adult entertainment industry are often analyzed under the intermediate scrutiny test.
To be constitutional under this test, a law doesn’t need to be “narrowly tailored” to achieve a “compelling government interest,” it just has to be “substantially related” to meeting an “important” government interest.
You see how the scale has moved? The government has some leeway when it comes to making laws in this category. The government just needs to have a decent reason and a law is related to that reason.
For example, say the government passes a law that says anyone who has a pit of vipers on their property and knows about it has to put up a sign that warns people about the pit. Forcing people to put up a sign is kind of forcing speech, right? Again, whether you agree or not, you can kind of see the argument. However, the government has an interest in warning people about pits of vipers, and the law relates to doing that thing, so it would pass the intermediate scrutiny test.
Rational Basis: For Everything Else
This final level of scrutiny is hardly a test at all, and it’s used for any law that doesn’t qualify for strict or intermediate scrutiny. To be constitutional, the law just has to be rationally related to achieving a legitimate state purpose. In this case, the law doesn’t really need to defend itself. Instead, it just can’t be absurd. For example, the government can’t pass a law requiring clowns to be certified parachute instructors, but it can pass a law saying that all clowns need to pay a tax on balloons.
