“Standards of Scrutiny”

I’ve blogged about this before, and discussed it in Part I of this law review article, but I thought I’d mention it again, especially since the topic came up on a discussion list that I’m on.

People sometimes talk about what is the “standard of scrutiny” for a particular right, having in mind ostensible standards such as strict scrutiny, intermediate scrutiny, the undue burden test, or the rational basis test. And they also sometimes claim to compare the standards for different rights, to decide which right is more or less protected. But this seems to me to usually be a mistake, at least at the level of an entire right.

Consider, for instance, what would be the standard of scrutiny for free speech. Sometimes it’s strict scrutiny, as to content-based restrictions on speech that’s outside the exceptions. Sometimes it’s a weak form of intermediate scrutiny, as to content-neutral restrictions that leave open ample alternative channels. Sometimes it’s a strong form of intermediate scrutiny, as to restrictions on commercial speech. As to speech that falls within the exceptions — as it happens, exceptions that were not themselves generated using strict scrutiny — it’s hard even to talk about standard of scrutiny. Is it that for speech that’s within the exceptions (e.g., obscenity, threats, fighting words) the standard of scrutiny is rational basis? Or should we see the standard of scrutiny for sexually themed speech, for instance, as the Miller test, for insults the Cohen/Gooding/Johnson test, etc.? Certainly the cases dealing with those exceptions generally don’t even talk about “standards of scrutiny” for the exception.

Likewise, the undue burden test for abortion restrictions under Casey is sometimes talked about as being roughly on par with intermediate scrutiny, but it’s not: It has a relatively high burden threshold (as opposed to intermediate scrutiny, which, when it comes to content-neutral speech restrictions or to sex classifications, have a very low burden threshold), but once a burden is found to be substantial enough to qualify, then the law is per se invalid.

The right to vote (in those contexts where the vote is indeed granted) does feature a super-strict scrutiny, with a very low burden threshold required to trigger it — in many ways a standard that’s higher than that ostensibly applied as to content-based speech restrictions, or as to searches and seizures. But it also has several categorical exceptions from its scope. For instance, people who aren’t U.S. citizens have no constitutional voting rights. Neither do people who aren’t residents of the jurisdiction. [UPDATE: Neither do those who have been convicted of crimes, even if they have served their sentences, or people who are younger than 18.] That’s not the rule for free speech (except perhaps as to non-U.S-citizens’ speech that involves spending money to speak about candidates), or as to searches and seizures, or other rights.

None of this means that we can’t think through new constitutional rights questions (such as how to deal with the right to keep and bear arms in self-defense, for example) by making analogies to other constitutional rights. But it seems to me that (1) the analogies should at least consider the whole range of constitutional rights, for instance the rights to demonstrate, lobby, build on one’s property, and marry (for which modest fees are allowed) and not just a particular right, (2) we shouldn’t talk about overall comparison between the standards of scrutiny for the whole right, since those are often hard to compare, and (3) we should recognize that some rights might in some situations properly be treated differently, because the rights serve different functions, and are differently affected by different kinds of restrictions. I suspect, for instance, that the ban on even very low poll taxes as to the right to vote — to the extent that the ban stems less from application of strict scrutiny in Harper v. Board of Elections and not from the Twenty-Fourth Amendment — stems not so much from a pure concern about individual rights but more from a desire to make sure that the ultimate election outcome reflects as closely as possible the views of the population as a whole, and the tendency of even a few-dollar tax to deter voting (given the low individual benefit to each voter of voting). The one-person-one-vote cases, for all their talk of individual rights, are likewise ultimately justified by the same concern. That needn’t carry over to demonstrations, marriages, or lobbying — where modest license fees have generally been upheld — or to gun rights.