OK, today I am going to get into a “wonky” mode and address an issue that always has bothered me when my mind is jogged.  Today the issue is strict scrutiny.  What, you may ask, is that?  Strict Scrutiny (SS) is a principle applied by Federal courts that first distinguishes between the importance attached to different rights and then evaluates government action that affects those rights that it considers most important with a more critical eye.  Courts will require a greater showing, a more convincing showing that the governmental action is legitimate.

As Peter Schuck, Professor of Law at Yale, writes,

“Strict scrutiny is supposed to…force reviewing courts to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a tight congruence of evidence, legal categories, and policy justifications.” (Assessing Affirmative Action,” National Affairs, 2014).

The Federal courts have been using this distinction for some time, and tend to treat civil rights as  more important than economic rights.  Thus for example a right relating to one’s due process or equal protection would be considered more important than a right related to property.

Now I believe that SS ought to be applied by courts to those kinds of cases to which it is normally applied, for example, racial cases, and now also Second Amendment cases, insofar as the principle continues to be used, but only insofar as it continues to be valid.  But I would go further, all the way in fact.  I am convinced that the principle perhaps is itself misguided.  Why are we using a principle to distinguish among rights embodied in the United States Constitution, as if the document itself made such distinctions or intended them to be made.  The various Bill of Rights provisions made no such distinctions, as if the right to bear arms was to be seen as somehow more fundamental than the right to property.

Moreover, it seems reasonable to suppose that a right is either violated or is not violated.  The shading of rights with levels of scrutiny makes it easier for government to effectively deny some rights by virtually telling a court “we believe our regulation or law has some reasonable purpose.”  And the court accepts what the government attorneys tell it as true.  That is not analysis, that is gross deference.  As I see it, courts should always apply the scrutiny mentioned above by Peter Schuck, to all rights explicitly set out in the Constitution.

One might make an argument that indeed some rights are more fundamental than others, but is it the court’s job to try to make the distinction?  I think not.  The Constitution itself must hold the key to the answer, or else attempts to make distinctions become arbitrary and based only on the ideologies of a majority of judges at any given time.  And if the Constitution does not spell out distinctions, we don’t make them.  We simply determine whether or not the right has been violated.

Some might also argue that rights that are thought to favor political liberals might now be better “perfected” than before.  On the other hand, rights favoring political conservatives might also be better perfected.  I answer: So be it.  Under our present fundamental law, the Constitution, a right is a right, period.  To be sure, we must still deal with interpretational issues.  Courts have, we all know, made up some rights, based on interesting mental gymnastics (for example, privacy rights).  That ought to be addressed also, but it is a separate issue.  I don’t always trust a majority of judges to remain within the bounds of the document itself or always to get the meaning of the words in it right (sometimes unintentionally, sometimes intentionally).  Nevertheless, I still believe that SS should not be used to deny arbitrarily some explicitly stated rights while exalting others.

I realize this would be a shocking and probably infeasible suggestion.  But the courts were in fact the ones to first make the distinction, not the Constitution.  So going back to a situation of no distinctions would be simply a return to the original intent.  Strict Scrutiny is not a sacrosanct legal principle.

While it is difficult to make a Biblical case on such a specific legal “technicality” I think I can come close.  In Scripture itself, when law was given, God did not say that some were more important than others, or that some classes of law were more important than others.  The question was whether one was guilty or not guilty.  Even punishment appears to be fixed for each statute, though some scholars believe the Mosaic laws offered the maximum punishment while allowing lesser ones.  I will not disagree here, and to the extent they are correct, my argument is diminished.  But in addition, the Law was treated as a sort of “seamless whole,” as indicated by the words of Jesus in Matthew 5: 17-20.  It was not carved up and some thought to be more important and some less.  But, to be clear, the function and application of some law did change with the coming of Jesus Christ (the “new covenant”).  Ceremonial laws are not now practiced, but they are also not abolished, and thus have their new role to point to Christ consistently.  But I would argue that this is not to diminish their force, merely to change their use.

If I am right, then these examples may be seen as analogous to the issue in this blog.  God then is revealed as one who doesn’t make arbitrary distinctions in His own given law, that is, distinctions in importance once that law is issued.  Exodus, Deuteronomy, and Leviticus may be seen as in part types of quasi-constitutions for the Hebrew Commonwealth.[1]

[1]   This is not an argument that the Mosaic Law is still normative in exactly the same way and detail as it was for the Hebrew people.  In other words, I am not making a Theonomic argument.