Compelling Interest and Boy Scouts
guayiya at BELLSOUTH.NET
Wed Jun 14 23:26:07 PDT 2000
Bruce Gottlieb has done some important work on compelling interests. There
is also a chapter on it in my book, "Our Elusive Constitution."
----- Original Message -----
From: Brian Landsberg <blandsberg at UOP.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Wednesday, June 14, 2000 6:40 PM
Subject: Re: Compelling Interest and Boy Scouts
> In response to David Bernstein's questions, quoted below, I don't recall
the Court ever explaining what made one interest compelling, another
important, and another simply legitimate. Normally one might think that it
is up to legislators, not courts, to decide on the relative weight of
interests, so long as they are at least legitimate. Although the cases
employ these terms, they seem generally to turn on whether the law in
question is sufficiently narrowly tailored. The Bernstein test , "immediate
threats to life, limb, property, and or 'the peace,'" may correspond to what
the Court had in mind in Korematsu, but doesn't it simply reflect a
particular "view of right and wrong?" For example, why is it compelling to
address immediate threats to life but not more distant threats? Why are
threats to life, limb, property more important than threats to livelihood,
dignity, individuality? It seems to me that the Bernstein test inevitably
embodies particular views of right and !
> wrong, just as other tests would.
> " Can the asserted interests of one state really be constitutionally
compelling? Or is the co!
> mpelling interest test simply an empty vessel for the justices' own ideas
of right and wrong?
> Unless someone can give me an idea of how we decide what types of
discrimination should be subject to the compelling interest analysis, and
how we objectively arrive at those and not other types, I'm afraid the whole
test is completely vacuous, and very dangerous. I would limit compelling
interest analysis to "immediate threats to life, limb, property, and or 'the
peace'" or something like that."
> Brian K. Landsberg
> Professor of Law
> University of Pacific McGeorge School of Law
> 3200 Fifth Avenue
> Sacramento, CA 95817
> (916) 739-7103
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