Recently, I’ve been reading about people who say it’s unconstitutional for the government to infringe upon their rights. I’m nearing the end of my third year of law school and am in my Constitutional Law class right now preparing for an upcoming final. The cases that form the precedent for how we evaluate when and how the federal and state government can infringe upon our rights are fascinating and a great read. But the facts are that the Constitution is the supreme law of the land and the Supreme Court is tasked with interpreting the Constitution. Nobody else. This is why their case law is so important – it’s how you learn how they interpret the Constitution.
In an analysis to determine if the government (here the State government) can infringe upon a right, you must first determine what kind of right is being infringed upon. (We’ll leave religion out of this analysis because the Free Exercise of Religion and the Establishment Clause have another type of analysis.) The right that is being infringed upon is the right to work, to go outside, to hang out with family and friends in gatherings, etc. This is a liberty right and it is considered a fundamental right.
A fundamental right is one that is deeply rooted in this nation’s history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.
This is important because in order to infringe upon a fundamental right, the government must pass the highest and most stringent standard of judicial review. This standard is called strict scrutiny. In order for a government to infringe upon the rights stated above, they must meet ALL of the following elements:
1. The ordinance or law is necessary in order to achieve a “compelling state interest”;
2. The law or ordinance is “narrowly tailored” to achieving this compelling purpose; and
3. That the law uses the “least restrictive means” to achieve this purpose.
So, what would states argue if they wanted to ensure they could lawfully (under the Constitution) infringe on your fundamental rights? (We might actually see this if any of the cases in the current environment hit the courts) They might argue it like this:
1. The state’s compelling interest is that they want to slow the spread of the virus and try to limit the deaths from it. (As a third year law student, this would probably pass the “compelling state interest” part of the rule.)
2. The ordinance must be written precisely to place as few restrictions as possible on First Amendment liberties. It seems like lots of liberties have been restricted and to me, who is suffering right along with everyone else, this feels pretty broad. But, from the State’s side, I’d argue that the State didn’t forbid driving around, going for a walk, going to the pharmacy or store, or many other services that were considered “essential.”
3. And lastly, did the State use the least restrictive means to achieve their compelling interest which was, slow the spread of the virus and try to limit deaths. There are probably more restrictive means than what we are facing now. There could be no “essential services” classification for instance. Or the ordinance could state that you can’t drive your car, go on walks, or even go outside. All of these are clearly more restrictive scenarios. But I think this element is the one that the State might have a more difficult time proving. Was the shelter in place order the least restrictive way to slow the virus and save lives? They couldn’t come up with something less restrictive?
If the State fails to satisfy the last element of the strict scrutiny standard, then they will have infringed upon your fundamental rights and will have violated the Constitution.
If they make an argument that the court feels reasonably satisfies all three elements, then they CAN infringe upon your fundamental rights that are protected under the Constitution.
I thought the process for determining when the government can infringe upon your fundamental rights might interest some of you. I find the Constitution and its interpretation fascinating.