The Scope of Compelling Government Interests

Abstract

In constitutional cases, any relevant government interest may be said to vary in its breadth or scope. Government interests can be characterized narrowly or broadly. The narrowness or breadth of how courts choose to formulate a government interest may well affect that interest's overall weight or legal significance. For example, a public interest in safety and security, broadly conceived, may seem compelling. But the public interest in merely some modest upgrading of a safety and security regulation may seem less than compelling. A court might adopt either description. A court's choice to characterize the government interest at stake as either broad or narrow in scope is, however, often made on dubious grounds. This Article highlights some of the most important of those dubious judicial choices as to the proper understanding of the scope of the government interest at stake, and then describes the nature and consequences of such choices.

Keywords: compelling government interests, narrow tailoring, free exercise of religion

JEL Classification: K1, K30, K40