Reason for a New Age

Judicial Review

Posted by publius2point0 on 2010/04/17

Law is itself something which can come on trial, in the modern world. And I mean that fairly literally. When a law is reviewed in a court, it is not simply a group of judges sitting and debating their opinions on the matter. There is an analogue for “evidence” when law is reviewed. Depending on the area of law or the specific topic, there are specific tests and questions that are to be utilized to verify the legality of the legislation. Obviously, it is then something of a matter of opinion whether the case is made for the law fitting any particular answer to one of these questions, but that is the same as when a jury considers the evidence in a trial.

For example, it is stated in the Fifth Amendment that no one shall be forced (in a criminal case) to testify against himself. This decree, accepted as one of the fundamental criteria for the legality of a law, can thus be brought to the fore for any question where it might be pertinent. If a person can argue that a law — for example, requiring the release of the password to his computer to the police — does not stand the test enshrined in the 5th Amendment, that law must be struck down.

In truth though — or at least I suspect — the tests and questions for judicial review do not usually come from the Bill of Rights nor the Constitution. Rather, they come from previous court cases that have established a precedent. The ideal case is one which offers a specific test that can be used by those that follow. For instance, here is the Lemon Test (quoting from the Wikipedia):

The government’s action must have a secular legislative purpose;
The government’s action must not have the primary effect of either advancing or inhibiting religion;
The government’s action must not result in an “excessive government entanglement” with religion.

If any of these 3 prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

Much like how I write my blog, building upon each previous post, the constraints on legality are more precisely defined as time goes on. If any part of the Lemon Test is unclear, some future case which was fought over just which interpretation to take will itself establish a test for what does or doesn’t constitute a certain thing as regards that part of the Lemon Test. Occasionally, tests or previous and standing opinions are overturned as being shortsighted, the demented products of their time, or whatever else, but for the most part judges prefer that precedent is simply built upon as time goes on, without any loss, only more tightly defined.

Besides the Constitution, the Bill of Rights, and legal precedent, there are three other Big Daddy standards for legality known as the Rational Basis Review, Intermediate Scrutiny, and Strict Scrutiny. As I think these are not well known, I will explain them here.

Rational Basis Review

Law must have some objective. If the Legislature is to write a law stating that people cannot chew bubble gum on Tuesdays and the President is to pass this into law, the court must be able to envision some interest served by this law for it to persist.

It is worth noting, however, that this is a very low standard. If the court can envision that there is a public interest in reducing the amount of sugar ingested by 1/7th, then the law will pass

Intermediate Scrutiny

Building upon the idea proposed in the Rational Basis test, Intermediate Scrutiny requires that whatever interest it is that can be envisioned for the law to serve, the law must be reasonably dedicated to the task. For instance, in the previous case we had decided that the goal was to reduce sugar intake. With gum being but one candy out of thousands of other alternatives, any one of which is at least as if not more sugary, and possibly even more popular, one can say that the law is not particularly related to the task it seems to be trying to serve. On that basis, it may very well be struck down.

Strict Scrutiny

Where one required that the law have a purpose and the other that the purpose was being addressed, strict scrutiny builds upon this and requires that the government have interest in that purpose and to be addressing it in a way that is not more restrictive than is necessary nor less. There must not be some alternative that would be just as effective without infringing as many rights.

If the goal of a law is to prevent sugar intake and so it abolishes all food intake on Tuesdays, this would be far more inclusive than need be to lower sugar intake by an appreciable amount. There are almost certainly better and less restrictive alternatives to accomplish the same goal.

If the goal of a law is to prevent people changing their name to something offensive, there must be some evidence that some government interest is attained by this, for instance that the regular and public use of the word might cause fights.

Further Reading:


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