Strict Scrutiny: The Invented Test That Ranks Your Rights

Two words have reshaped American liberty more than most constitutional amendments ever will. They sound rigorous. They sound like courts are protecting your rights. But strict scrutiny is a judge-made balancing test with no more basis in the text of the Constitution than a regulation written by the very bureaucrats it is supposed to restrain.

Search the Constitution. You will not find strict scrutiny. You will not find compelling state interest. You will not find narrow tailoring. Those phrases are twentieth-century inventions created by judges who wanted to decide which rights deserve protection and which government interests should prevail. That is not judging. That is legislating from the bench.

This is not an argument about whether rights matter. It is an argument about who decides what rights mean and how much they count. Right now the answer is unelected judges applying an invented formula. And that formula has done far less to protect liberty than its defenders claim.

A Test That Sounds Strict but Is Not

Under the strict scrutiny test a law survives only if the government shows a compelling state interest and proves the law is narrowly tailored to achieve that interest. On paper that sounds demanding. In practice it is whatever the judge says it is.

Who decides what is compelling? The judge. Who decides what is narrow? The judge. There is no objective definition of either word. The test is not an algorithm. It is a vocabulary for rationalizing outcomes. That is why strict scrutiny is not strict in any meaningful sense. It is as tight or loose as the judge wants it to be.

In Grutter v. Bollinger the Supreme Court applied strict scrutiny to racial preferences in university admissions and upheld them because a majority of justices happened to think diversity was a compelling interest. The same test that was supposed to be the most rigorous in constitutional law allowed the government to classify people by race. It took another two decades, until Students for Fair Admissions v. Harvard in 2023, for the Court to finally reject the regime Grutter blessed.

Even more troubling is where the test came from. The seed was planted in 1938 in the famous footnote four of United States v. Carolene Products. That footnote suggested courts should be more searching when laws burden civil liberties or target discrete and insular minorities. The modern strict scrutiny test then took shape in Korematsu v. United States in 1944, the Japanese internment case. There the Supreme Court announced that racial classifications were immediately suspect and required the most rigid scrutiny, then upheld the internment anyway on assertions of military necessity.

That is the origin of the test: a fig leaf for one of the worst civil liberties abuses of the twentieth century. The Supreme Court later repudiated Korematsu as gravely wrong, but the judge-made standard it helped create remained. That should tell you something about the reliability of the whole exercise.

A Hierarchy the Constitution Never Wrote

Here is the angle few people discuss: the tiers of scrutiny do not just add language to the Constitution. They create a hierarchy of rights that the Constitution never established.

Under current doctrine a content-based speech restriction gets strict scrutiny. A law that targets religion may get strict scrutiny. But a law that prevents you from earning a living, whether through occupational licensing, zoning rules, or regulatory barriers, often gets only rational basis review. That standard is so deferential that courts routinely uphold laws that make no rational sense at all.

Think about what that means. A hair braider who wants to earn an honest living without thousands of hours of pointless training is told her economic liberty is a second-class right. A property owner whose land is taken for a private development may be told the so-called public use requirement is satisfied if a legislature can imagine some indirect benefit. But a university speech code can be struck down under strict scrutiny in a single afternoon. The Constitution does not rank those rights. Judges did.

The Ninth Amendment says that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The Fourteenth Amendment was written to protect the right to pursue honest work and the equal protection of the laws. Yet judges have assigned economic liberty to the bottom tier while treating other claims as first-class. That is not interpretation. It is a quiet judicial coup.

The founders did not divide rights into tiers. They wrote a Constitution that limits government and enumerates specific protections. The idea that a majority of the Supreme Court could decide that your right to earn a living is less fundamental than someone else's preferred claim is exactly the kind of arbitrary power the Bill of Rights was designed to prevent.

An Originalist Alternative

The late Justice Antonin Scalia exposed this problem in District of Columbia v. Heller. The Court refused to subject the Second Amendment to an interest-balancing approach. Scalia wrote that a constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.

That sentence should be carved over the entrance to every law school.

The original Constitution provides a method: text, structure, and original public meaning. The First Amendment says Congress shall make no law abridging the freedom of speech, not no law unless the government has a compelling reason. The Equal Protection Clause commands equal protection of the laws, not different treatment if a judge thinks the interest is compelling. The enumeration of powers limits what Congress may do. The Bill of Rights defines what government must not do. That is a rule of law, not a balancing test.

Strict scrutiny, by contrast, is the rule of men. It invites judges to weigh interests, guess at social consequences, and decide case by case whether a right is really worth insisting upon. That is precisely what the Constitution was designed to prevent.

In Federalist 78 Alexander Hamilton wrote that the judiciary has neither force nor will but merely judgment. Strict scrutiny is will, the will of five or six lawyers in black robes substituting their preferences for the written law. It converts constitutional guarantees into permission slips. A right that exists only if a judge thinks your claim is compelling is not a right at all.

Defenders of strict scrutiny will say the test is necessary to protect minorities from majorities. But a test that could uphold Japanese internment while letting judges treat economic liberty as a joke is no protection. It is a discretionary power that has been used to justify both. The problem is not that judges care about rights. The problem is that they have claimed the authority to decide which rights matter and how much. That authority belongs to the text of the Constitution, not to the Supreme Court.

The Human Stakes

This is not an abstract debate. When judges get to decide which rights are fundamental and which government interests are compelling, your liberty is no longer secured by the Constitution. It is on loan from the courts.

That is why a baker can be hauled before a commission for declining to create a message he disagrees with while a university can use race in admissions. It is why a church can be locked down while a liquor store stays open. It is why generations of Americans have seen the right to earn a living treated as if it does not matter. These are not the results of the Constitution. They are the results of judge-made tiers.

The answer is not more balancing. The answer is originalism: enforce the Constitution as written, protect rights through text and history, and reject the tiers. Otherwise we do not have a government of laws. We have a government of judges, and they call it strict scrutiny.