Document Type
Essay
Abstract
In constitutional cases, any relevant government interest may be said to vary in its breadth or scope. Government interests can be characterized narrowly or broadly. The narrowness or breadth of how courts choose to formulate a government interest may well affect that interest’s overall weight or legal significance. For example, a public interest in safety and security, broadly conceived, may seem compelling. But the public interest in merely some modest upgrading of a safety and security regulation may seem less than compelling. A court might adopt either description. A court’s choice to characterize the government interest at stake as either broad or narrow in scope is, however, often made on dubious grounds. This Essay highlights some of the most important of those dubious judicial choices as to the proper understanding of the scope of the government interest at stake, and then describes the nature and consequences of such choices.
Undue narrowing by courts of the scope of the relevant government interest at stake is most conspicuous in the contemporary freedom of religion cases. Judicial narrowing of the scope of government interests in religious freedom cases is, however, put under exceptional pressure in the COVID-19 regulation and herd immunity cases. And judicial narrowing of the relevant government interest is often rejected in other contexts, such as equal protection, and affirmative action in particular. Additional appreciation of the scope of government interest problems can be gleaned from the cases involving freedom of speech; the congressional power to regulate interstate commerce; and from the cases addressing procedural due process hearing rights.
The judicial tendency to unduly limit the scope of any compelling government interest, in religious freedom cases and elsewhere, typically involves what we might call problems of aggregation, and a variety of fallacies of composition. The rough idea here is that for a variety of reasons, the logic of any one single case, or of a few such cases, cannot be translated into some further succession of apparently similar cases.
An important complication then arises. The cases implicitly suggest that strict scrutiny is, typically, not a genuinely two-part test, with separate inquiries into the weight of the government interest and the narrowness of tailoring of the regulation to that interest. As it turns out, the judicial inquiry into the existence of an inherently vague government interest is inseparable from and dependent upon the narrow tailoring inquiry, and vice versa. In particular, the more demanding the narrow tailoring inquiry, the less well, and the less effectively, any broad version of the inherently vague government interest is likely to be promoted.
Recommended Citation
R. G. Wright,
The Scope of Compelling Government Interests,
98
Notre Dame L. Rev. Reflection
146
(2023).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol98/iss3/2