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A reader and I are having a discussion about the limits of using laws to legislate morality.  I referenced Justice Scalia’s dissent in the Lawrence v. Texas case, where he lamented that we are now at the point that there is no longer any legal basis for the citizenry to legislate moral decisions that don’t have a rational basis; that is, laws now must have a clearly defined, logical reason if they are going to impose on the freedom of the individual.

The reader asked:

“Who decides what counts as logical reason? How is it defined?”

My response was too long to fit into the comments box so I decided to publish it as a post.

The 3 Levels of Scrutiny Applied to a Constitutional Challenge

To answer your question, specifically, requires an understanding of the process.  It’s taken the country more than 230 years to work out a system where those issues are not only answered, but there are checks and balances to them.

There are three levels of scrutiny that apply to whether a law is struck down in a constitutional challenge.  The level depends, in part, on whether the law imposes on what is known as a legal concept known as a fundamental right. These are special rights that are considered to be inalienable; that is, they either flow from God Himself and belong to every human or they are a basic human right that cannot be violated, depending on your worldview.

[mainbodyad]In the United States, it takes a lot for a right to be recognized as a fundamental right, often requiring centuries of case law building up to it. Some of these rights are listed in the Constitution. Many are not. That is why the founding fathers insisted on the 9th amendment – several of them, Madison among them if I recall correctly, were terrified that in a few generations, someone would argue that a right had to be specifically listed in the Constitution to be considered fundamental.

The right to freedom of speech is a fundamental right.  The right to marriage is a fundamental right (your parents can’t arrange your marriage, you can’t be denied a marriage license just because you are a felon or didn’t pay your child support).  The right to travel both interstate and intrastate is a fundamental right.  The right to procreation is a fundamental right (though there is still some question on this as Buck v. Bell has never been overridden).  The right of family relations (living together with the people you want) is a fundamental right.  The right to contraceptive is a fundamental right.  There are more, but you get the idea.  

Each fundamental right has a wide body of cases, decided all the way up to the Supreme Court, that support their recognition.  For example, there is a fundamental right to privacy in a marriage relationship, which goes back to a long line of cases from Griswold v. Connecticut to Lawrence v. Texas.  That is, your neighbors cannot vote on whether or not you and your husband want to use the birth control pill or engage in oral sex, even though many states have repeatedly passed laws banning both at various times.

The 3 Tests Applied to Strict Scrutiny

Think of a fundamental right as something that your friends, family, neighbors, colleagues, and coworkers can’t take away from you unless they can go before a lot of judges, over many years, and provide a damn good reason for justifying their actions.  They have to be able to clearly, and eloquently, demonstrate that it was necessary to do by passing three tests called Strict Scrutiny.  If any part of the three-point test is failed, the law is struck down.

  1. The law must serve a compelling governmental interest.  That is, it must specifically do something very clear that serves a purpose such as saving lives, protecting property, etc.  The law cannot exist solely to discourage behavior that people find offensive or immoral.
  2. The law must be narrowly tailored to achieve the compelling governmental interest in the first test.  It cannot expand beyond those borders.
  3. The law must use the least restrictive means possible for achieving that objective.    

Strict Scrutiny is also used in cases where a particular disenfranchised group (called a “suspect classification”) has been subject to repeated laws passed against it based on an inherent characteristic (e.g., a law that applied to or that disproportionately hurt black Americans would be subject to Strict Scrutiny).

In some cases, curtailing a fundamental right does pass the Strict Scrutiny tests.  For example, in Schenck v. United States, the Supreme Court ruled that “falsely shouting fire in a crowded theater” is not considered protected free speech, and thus not a fundamental right, because the State has a compelling interest in preventing a panic that would cause deaths and property damage as people stampeded toward the door.  

The Easiest Test – Rational Basis Review

At the bottom of the chain is the easiest to pass test, known as Rational Basis Review.  When a law is challenged on constitutional grounds, the government need only show that the law is “rationally related” or “legitimate” in serving its purposes.  Any rational reason for the law, even if it is idiotic, is enough to uphold it.  Thurgood Marshall has a famous oft-cited quote on upholding laws under Rational Basis Review when he said, “The Constitution does not prohibit legislatures from enacting stupid laws.”

In between the two – Strict Scrutiny and Rational Basis – is a sort of quasi-heightened review that Justice Kennedy has applied several times.

How a Constitutional Test Is Applied In the Case of a Law That Is Struck Down

To answer your question, “Who decides what is logical?”: At every step along the way, you have multiple people, appointed by both Republicans and Democrats, having served a lifetime looking at legal decisions and frameworks, making that determination based on a level of hierarchy. People do not overstep their boundaries very often because they don’t want to be overturned on appeal, which is bad for a career (it would give you a reputation for shoddy decisions, which means no more promotions or prestige).  These people are appointed by the President, confirmed by the Senate, and given lifetime tenure so they are immune from popular vote and don’t have to worry about job security influencing what they think is right or wrong.

This system results in very few terrible rulings – though some certainly do exist – because it has to go through so many people, with their reputation on the line, who have to justify their opinions based on the current legal framework.  It’s one of the reasons that the United States has managed to become one of the oldest, most stable democratic republics in the history of the world.  Instead of picking up guns, we resolve our conflicts with debates, based on rules that evolved over centuries.

Let’s look at each person, individually, and the various levels that exist above him or her to make sure the decision was the right one.

Level 1: If a person believes a law violates their Constitutional rights, they file a case in Federal court.  It goes to a District court, at the local level.  In the 50 states, there are currently 89 district courts.  Your case would be randomly assigned to a District Judge in the District that had jurisdiction.  That judge would examine the evidence, write an opinion, and rule.  The District court is where most of the work is done.  At the lowest level, the District Court has to rule on what are known as “findings of fact” that are debated in the courtroom level between the two sides and settled.  For example, in one famous and contentious lawsuit, you can find the findings of fact beginning on page 54.  Assertions are based on court references or cited from existing legal precedent.

Level 2: If you wanted to appeal, your case would then go up the chain to a Court of Appeals.  The United States is divided into 13 judicial circuits based on geography.  The First Circuit is the smallest, and has 6 judges, the Ninth Circuit is the largest, and has 29 judges (it is twice as big as the next circuit and covers almost 20% of the entire population of the United States, which is why you hear about it on the news so often).

U.S. Court of Appeals

At this point, your case would be assigned to a panel of three judges, who are randomly selected from the circuit, and who hear your case.  They vote, and the majority determines the binding decisions, with the opinions written and released as to what the Constitutional merits are.  In the case of a Constitutional challenge, the ruling of the Circuit applies to all of the States under its jurisdiction.

Level 3: If you still want to appeal, you can request an En Banc hearing.  In this case, all of the judges in a circuit will get together in a huge hearing, and all of them will rehear the case, vote, and write an opinion.  This is rarely done and used only in the most important Constitutional challenges.  This step can be skipped and you can go to the next step directly.  

Level 4: Finally, if you still don’t like the decision, you can appeal all the way to the United States Supreme Court.  Here, the arguments are made, and, again, a vote taken with majority ruling.  Opinions are written and published, with the final decision applying to the entire country.

The Supreme Court normally only takes Constitutional cases in which several of the underlying circuits have resolved Constitutional challenges differently, relying on different precedent and legal theories.

At this point, the process has taken an average of 5 to 8 years, involved as many as 39 of the most senior, experienced judges in the nation appointed by the duly elected representatives of the people, dozens of lawyers, and well established tests that have evolved organically since long before either your or I were born.

Level 5: If the people do not like a decision, they can pass a law repealing the law in question or use Congress to remove jurisdiction from the courts, making the entire case a moot point.

Level 6: If the people want absolute certainty, they can use the strongest power in their arsenal and pass an amendment to the United States Constitution, overriding the Supreme Court and serving as the final say.  This was the final check-and-balance put in place by the founders.  

By the time something has become Constitutional precedent for a majority of the country, or the country as a whole, a lot of very intelligent, very educated, very eloquent people have been passionately arguing about it for years, basing their decisions on a particular Constitutional framework.  They almost always get it right.  If the people, as a whole, don’t like the decision, they always have the ultimate veto in the form of the amendment process.

The courts give very wide latitude to legislatures and executives.  It’s rare for a law to get struck down at the higher levels, illustrating just how hard it is to achieve and how much thought goes into it by the many people along the hierarchy who get to cast a ballot with their reputation on the line behind it.

So, in other words: All of us, as a civilization, get to make the determination of what is ultimately logical and rational through the mechanisms that we’ve established and developed for the past quarter of a millennia, a lot of which we, as a nation, borrowed from Ancient Greece and Rome, as well as the European enlightenment.