Judicial review of government restrictions of individual rights takes different forms depending on the nature of the right and the infringement. The most stringent form, ‘‘strict scrutiny,’’ requires that the restriction be necessary to serve a compelling state interest.
The modern Supreme Court demands a compelling state interest in essentially two circumstances. First, some (although not all) infringements on fundamental rights receive strict scrutiny. Fundamental rights include textually specified rights such as the protections of speech and religion found in the Bill of Rights, and also some unenumerated rights, such as the right to travel interstate or the right of access to the courts. Second, discrimination either with respect to a fundamental right or on the basis of a ‘‘suspect classification’’ will receive strict scrutiny under Equal Protection doctrine. Suspect classifications include race, national origin, religion, and alienage.
In essence, the demand for a compelling state interest is the codification of a balancing test that weighs the governmental regulatory interest against the individual’s liberty. The specific demand for a ‘‘compelling’’ interest dates back to Justice Felix Frankfurter’s 1957 concurring opinion in Sweezy v. New Hampshire and was adopted by the Court one year later in NAACP v. Alabama.
While there has been much debate over how and whether the Court should go about identifying unenumerated fundamental rights, the process of deeming an interest compelling has received much less attention. The Court has never clearly explained how it assesses the importance of an interest, and relatively few scholars have addressed the subject.
KERMIT ROOSEVELT, III
References and Further Reading
Cases and Statutes Cited
See also Balancing Test