by Judge Gerald A. Williams
North Valley Justice of the Peace
On the national level, one political party clearly has enough representatives and senators to pass whatever health-care proposals it desires. It has not done so in part due to public opposition. Meaningful debate is always good and every American knows that they have a right to free speech and to question their government.
However, concerned citizens who appeared at town-hall meetings and tea party protests were accused of spreading lies and being uninformed. One commentator noted that doing so keeps supporters of new health care entitlements from having to contemplate the possibility that these citizens have a rational basis for opposing so-called health care reform.
Both sides have used terms incorrectly and out of context, even though there are clearly defined meanings. One such term is “unconstitutional.”
Generally the U.S. Supreme Court has established three categories of what kind of review will be applied to a government’s actions to determine whether something is constitutional. If strict scrutiny is applied, then the law or action will be upheld only if it is necessary to achieve a compelling government interest. On the other end, if a rational basis test is applied, then the law will be upheld if it is merely rationally related to a legitimate government interest. Between these two, there is an intermediate scrutiny that, if applied, will uphold a law if it is substantially related to an important government purpose.
The level of scrutiny to be applied will likely control the outcome of the case. For example, if something is a fundamental right, like anything in the First Amendment, or has been declared to be a fundamental right, like the right to privacy, then strict scrutiny will be applied to government action trying to restrict that right. Any restriction based on someone’s race is also going to trigger strict scrutiny.
Free speech works as an example. Freedoms of speech and assembly allow the free flow of ideas and debate and are a prerequisite for a free society. However, there are numerous time, place and manner restrictions on speech. For example, false advertising, defamation and the disclosure of top secret information are not protected speech.
The next time you hear someone declare that an action of either the previous or current President to be “unconstitutional,” feel free to ask them, “How?” It might be fun to see whether they understand their own argument.
Judge Williams is the presiding justice of the peace for the Northwest Regional Court Center. His column appears monthly in The Foothills Focus.