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Strict Scrutiny Standard of Constitutional Review

Cite this article as: Jason Mance Gordon, "Strict Scrutiny Standard of Constitutional Review," in The Business Professor, updated January 2, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/strict-scrutiny-standard-of-constitutional-review/.
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Strict Scrutiny Standard of Review
What is Strict Scrutiny? The highest standard of review to determine if a law is constitutional.

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Strict Scrutiny -Constitutional Standard of Review

Strict Scrutiny – This standard requires that a law have a compelling state purpose to be constitutional. Further, the law in question must be “narrowly tailored” to achieve that purpose and must be the “least restrictive means” of achieving that purpose. This means that the government must make certain that the law is not overly broad in the type of conduct that it affects. Further, there must not be another method of achieving this purpose without infringing upon the affected individual’s rights. Strict scrutiny is used if the classification involves a fundamental right under the Bill of Rights or under the Due Process Clause. It is also applied when a law or government action specifically affects a suspect class. That is, the law or action has a discriminatory effect based upon race, gender, religion, and national origin.

One of the earliest cases to employ the Strict Scrutiny standard or review was Skinner v. Oklahoma (1942). The case involved a law allowing for the sterilizing of a defendant on the bases of multiple commissions of crimes involving moral turpitude. The Court held that strict scrutiny must be applied when evaluating infringement of “a right which is basic to the perpetuation of a race”. The standard was raised again in Korematsu v. United States (1944) which involved the internment of US citizens of Japanese origin during World War II. Later cases continued to formalize this strict standard and included the elements that the law must be “narrowly tailored to achieve a compelling government interest”). An example of applying the strict scrutiny standard to fundamental rights (Equal Protection) based upon race, is  Loving v. Virginia (1967), where SCOTUS struck down a Virginia law banning interracial marriage.

  • Example: The state passes a law prohibiting individuals from burning the state flag. Burning a flag is a form of expression that is protected by the 1st Amendment. For this statute to be constitutional, it must achieve a compelling governmental purpose (within the state’s police power), be narrowly tailored to achieve that purpose, and be the least restrictive means of achieving that purpose. In this situation, there is likely no compelling purpose related to the state’s police power that justifies limiting an individual’s 1st Amendment rights. As such, the state statute would likely be held unconstitutional.

Discussion: There is no single standard for determining what is a compelling state purpose. The court must determine whether the law’s purpose is a compelling interest. How do you feel about the court’s autonomy in making this determination? Do you believe that the requirement that the law be narrowly tailored and the least restrictive means of achieving the purpose adequately protect an individual’s fundamental or constitutionally protected rights?

Discussion Input

  • The court must necessarily have powers that enable it to make such autonomous decisions. Some might argue that the term “compelling” only arises when regulation of situation is essential or necessary rather than a matter of choice, discretion or preference.

Practice Question: The state passes a law stating the news media must receive approval from state authorities before reporting on any criminal investigations. The purpose of the law is to make certain that the new reporting does not detriment an investigation in process. A media group challenges the law in court, alleging that the law is a violation of the 1st Amendment. What analysis will the court apply in determining whether the law is Constitutional?

Proposed Answer

  • The court will certainly apply strict scrutiny to determine the constitutionality of that law. The 1st Amendment prevents the state from making laws that infringe upon the freedom of the expression unless it meets strict scrutiny standards. The state’s interest here is in protecting the investigations from being damaged. There is a debate as to whether this is a compelling interest, but let’s assume that it is and move on to the next element. The court shall further subject the law to narrow tailoring to ensure it protects individual rights. Here, a broad law that prohibits reporting on any investigation is likely overbroad in that it will restrict reporting on cases that are not a compelling interest to the government. It is very unlikely that the court will determine this law to be the least restrictive manner of achieving the government objective. As such, it is likely to be held unconstitutional.

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