Everything about Strict Scrutiny totally explained
Strict scrutiny is the second most stringent standard of
judicial review used by
United States courts reviewing federal law (the most exacting standard, "super strict scrutiny," is used to review
prior restraints outside of the
Near v. Minnesota exception). Along with the lower standards of
rational basis review and
intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the
Bill of Rights; or when the government action involves the use of a "
suspect classification" such as
race or national origin that may render it void under the
Equal Protection Clause. These are the two applications that were anticipated in
footnote 4 to
United States v. Carolene Products.
To pass strict scrutiny, the law or policy must satisfy three prongs:
» First, it must be justified by 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.
» Second, the law or policy must be
narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule isn't considered narrowly tailored.
» Finally, the law or policy must be the
least restrictive means for achieving that interest. More accurately, there can't be a less restrictive way to effectively achieve the compelling government interest, but the test won't fail just because there's another method that's equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.
Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by
Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly sixty percent of applications.
De jure versus de facto discrimination
As applied in
Korematsu v. United States, upholding as constitutional the internment of
Japanese Americans during
World War II, strict scrutiny was limited to instances of
de jure discrimination, where a racial classification is written into the language of a statute. Justice
Byron White, in
Washington v. Davis (1976), also applies the test to instances where such an explicit classification isn't made, but where disproportional impact is coupled with discriminatory intent. In doing so, he suggests that such intent elevates a seemingly
de facto form of discrimination to a more invidious
de jure form.
The Court's decision in
Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent becomes apparent, the presence of any of which demands the harsher equal protection test. The Court must use strict scrutiny if (a) the impact is so “stark and dramatic" as to be unexplainable on non-racial grounds, as in
Yick Wo v. Hopkins; (b) the historical background suggests intent; or (c) the legislative and administrative records show intent.
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