To Secure These Liberties . . . Strict Scrutiny

Every civics class in America surely includes this passage from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it

We are led to believe that governments exist to “secure these rights.”

One need only read a few of the laws created by Congress and other legislatures to wonder if these governments are truly “securing the rights to life, liberty, and the pursuit of happiness,” or are actually depriving people of liberty.

Might I suggest that every legislator hold themselves to the “strict scrutiny” test at all times, rather than passing bills “so we know what’s in it,” and hoping that the Nine Supremes will apply some lesser standard?

Strict Scrutiny  requires a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.

Legislators should make one more test, per Stephen Carter:

There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

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