Treating Freedom as a Fundamental Right
Whenever a new law imposes new restrictions on individual liberty, a very high standard of necessity should apply, a standard that treats freedom as a fundamental right.
Congress should therefore adopt a rule that no new law having an impact on individual liberty can take effect unless:
1. There is a compelling governmental interest to justify the impact on liberty. In general, this requirement means that the statute must address harms that are real and, also, that the restrictions on liberty "will in fact alleviate those harms to a material degree," enough to justify the restrictions.
This standard is not new or unprecedented. It is, in fact, the standard that the U.S. Supreme Court applies when it reviews the validity of laws affecting the small number of fundamental rights that it already recognizes (such as freedom of speech). If Americans are to enjoy freedom as a fundamental right, however, then this standard should apply to all laws affecting liberty.
2. The statute is narrowly tailored to promote the compelling interest.
3. There are no less restrictive alternatives that would also serve the compelling interest.
Today, the standard that applies to most restrictions on liberty is the so-called "rational basis" test. Under this standard, a law is considered legitimate as long as there is any conceivable "rational basis" to support it. Obviously, this is not much of a standard at all. As Justice Scalia once aptly noted, this standard amounts to a rule that every law is valid unless the legislature has a "stupid staff." In point of fact, the present "rational basis" test is no real limit on governmental power. It is a sham.
The so-called "rational basis rule must therefore be replaced with the rigorous 3-part standard set out above. This high standard, which is known as "strict scrutiny," treats freedom as a fundamental right.
More laws = Less liberty