Republican nominees have often been disappointments for originalists, but Neil Gorsuch is turning out to be the exception to this trend.
When the Supreme Court finds that a law is inconsistent with the meaning of a right granted by the Constitution, the government can nonetheless still prevail if it shows that it has a compelling interest for the law. In my view, the standard for an interest sufficiently compelling to trump an individual right must be very high, because the jurisprudential justification for this limitation is ultimately the absurdity rule: a rule of interpretation existing at the time the Constitution was enacted. Put simply, the rule states that jurists would not read even clear language, including rights conferring provisions, and reach such an absurd result.
But sadly, the Supreme Court’s standard for a compelling interest has often fell short of the absurdity mark. Worse, it has in any event been inconsistently applied.
Here is an idea for making the standard both more rigorous and more consistent: Presumptively, an interest is not compelling unless other states (or the federal government if it is a state law) have similar laws. The rationale for this test is that if a law was really needed at the expense of an individual right—if it was really absurd to imagine a flourishing society without it—other governments would have enacted it as well. A government could only overcome that presumption if it could show there was something dramatically different about its state or in the case of the federal government about the nature of the federal government. Note that this test would work only to screen out, not screen in, compelling interests. Even if all governments had such laws, the defending government would still have to show that the law was necessary to meet an essential objective.
There are some indications that the Court might embrace such a standard. In Janus, the majority held that requiring unwilling state employees to subsidize collective bargaining objectives violated the First Amendment. To the argument that this requirement was necessary to sustain public unions and thus keep labor peace, the Court noted that the federal government had unions. But it did not compel employees to pay dues and yet preserved labor peace.
Similarly at oral argument in Minnesota Voters Alliance v. Mansky, a case about the constitutionality of law that banned political apparel at polling places, Justice Samuel Alito noted that many states did not have such laws and yet voting in these states did not seem less fair or the operation of polling places less smooth than in Minnesota. The Court ultimately ruled against Minnesota, although the majority opinion did not rely on Justice Alito’s insight.
This kind of analysis would be helpful in a wide variety of rights cases. For instance, it appears that many states do not undertake affirmative action programs—indeed state law prohibits them in California, Michigan, and Washington—and yet there is no evidence that students get an insular education in those states of the kind that “diversity” programs are designed to prevent.
To be sure, the Court has expanded the scope of some individual rights beyond their original meaning. But once the Court has decided on their appropriate scope it should not manipulate their application by a malleable compelling interest test. Forcing governments to explain why they need laws that other governments do not would help create a better national standard for national rights.