# Compelling interest, my ass.



## dblack (Apr 14, 2016)

Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.


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## Skylar (Apr 14, 2016)

dblack said:


> Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.



Issues of public interest or concern that don't violate rights, generally speaking. And yes, its ridiculously broad. 

But then, so is the 10th amendment.


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## dblack (Apr 14, 2016)

Skylar said:


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I haven't noticed the "don't violate rights" part. In fact, the "compelling interest" excuse is usually only invoked as justification for laws that DO violate rights.


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## Skylar (Apr 14, 2016)

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The term usually only comes to your attention when there is some disagreement on the matter. In almost every case 'compelling interests of the state' go along just fine....and ridiculously broad.


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## dblack (Apr 14, 2016)

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Read up on it. The 'compelling interest' concept defines exceptions, cases where the government's "interests" (again, whatever the hell THAT means) are judged to be more important than the rights of citizens.


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## Skylar (Apr 14, 2016)

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In the context of court conflicts between the State and individuals who allege the State has violated their rights, sure.

In the context of the actual application of State authority on a daily basis, almost never. 'Compelling State Interests' is a ludicrously broad category generally encompassing pretty much any issues of public interest or concern.

You're only aware of those rare instances where it it is alleged to come into conflict with rights.


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## dblack (Apr 14, 2016)

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I guess I'm not sure what kind of point you're trying to make here. My complaint with the "compelling interest" rationale is that it's used as a catch-all excuse for government violating our rights wily-nily. And, yeah, it's ridiculously broad. It effectively neutralizes Constitutional limits on government. Are you agreeing with me that it's wrong?


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## Skylar (Apr 14, 2016)

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What I said in my first post: 

[Compelling State Interests are] _Issues of public interest or concern that don't violate rights, generally speaking. And yes, its ridiculously broad. 

But then, so is the 10th amendment._


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## dblack (Apr 14, 2016)

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Are you agreeing with me that the concept is abused? That there is no clear definition of what comprises a "compelling interest" and that it's used as a loophole for government to extend its power to violate the rights of citizens rather than protect them?


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## C_Clayton_Jones (Apr 14, 2016)

dblack said:


> Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.


This is as ignorant as it is wrong.

Although inalienable, are rights are not absolute, and are subject to reasonable restrictions by government (see e.g. _DC v. Heller_).


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## dblack (Apr 14, 2016)

C_Clayton_Jones said:


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And what restrictions are "reasonable"? Answering that question is the whole point of the "compelling interest" rationale in the first place. Do you gave any actual knowledge of the topic? What criteria does the Court use to determine what interests are "compelling" an which aren't? I haven't found any consistent formulation of such criteria, which leaves the concept - as Skylar points out - ridiculously broad.


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## C_Clayton_Jones (Apr 14, 2016)

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When Utah enacted Amendment 3, prohibiting same-sex couples from marrying in that state, the measure was invalidated by the courts because Utah failed to establish a compelling governmental interest in doing so.

Our rights are often safeguarded by the Constitution and its case law from unwarranted attack by the state.

When demonstrators sought to stage a ‘sleep-in’ on public property in Washington, D.C., to bring attention to the problem of homelessness, the City prohibited the demonstration. The Supreme Court upheld the City’s decision to do so, as the City established a compelling governmental interest to keep public areas free from obstructions and accessible citizens (see _Clark v. Community for Creative Non-Violence_).

Again, our rights are not absolute, they are indeed subject to reasonable restrictions by government, consistent with the Constitution and its case law, and the rule of law.


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## C_Clayton_Jones (Apr 14, 2016)

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That would depend on the level of judicial review warranted by the nature of the Constitutional controversy: rational basis, intermediate scrutiny, and strict scrutiny.

Not all issues concerning the constitutionality of government laws, measures, and policies are subject to the same level of review.

In general, in order to pass Constitutional muster, a law must be rationally based, it must be supported by objective, documented evidence, and it must pursue a legitimate legislative purpose. 

This is why measures seeking to deny same-sex couples access to marriage law failed: there was no rational basis for such measures, there was no objective, documented evidence in support, and the measures did not have a legitimate legislative purpose, as they sought only to make homosexuals different from everyone else, in violation of the 14th Amendment.

Laws concerning the rights of gay Americans are for the most part subject to intermediate scrutiny, where laws concerning race or religion are subject to strict scrutiny of judicial review.


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## dblack (Apr 14, 2016)

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Yep, 'rights are not absolute' is your go-to line, but it's simply an obvious observation and irrelevant. Rights are always limited to freedoms that don't violate the freedom of others (your right to swing your fist ends at my nose, etc...). This is perfectly compatible with the concept of government tasked with protecting our rights.

The idea of 'compelling interests', as near as I can tell, is an attempt to justify government that actually violates our rights.


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## C_Clayton_Jones (Apr 14, 2016)

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Actually it’s not broad at all.

First Amendment jurisprudence, for example, has evolved over the last two centuries to afford both the courts and lawmakers a comprehensive resource as to what laws and measures are Constitutional, and what are not concerning speech, religion, and assembly. 

And the doctrine of compelling governmental interest is neither a ‘catch all’ nor ‘wily-nily.’

If government has acted in a manner consistent with Constitutional case law, then no rights have been ‘violated.’


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## dblack (Apr 14, 2016)

C_Clayton_Jones said:


> And the doctrine of compelling governmental interest is neither a ‘catch all’ nor ‘wily-nily.’



Then it should be no problem to define it succinctly. What constitutes a compelling interest?


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## C_Clayton_Jones (Apr 14, 2016)

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No, there is no agreement that the concept of compelling governmental interest is ‘abused,’ as in fact it is not. There is a clear definition of what comprises a compelling interest, one needs only to review the relevant case law, and a compelling governmental interest is not used as a ‘loophole’ for government to extend its power to violate the rights of citizens, as the courts frequently invalidate laws and measures where government has indeed failed to establish a compelling interest to limit or preempt citizens’ rights.


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## dblack (Apr 14, 2016)

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Hmm... well, you're the self-styled expert on 'case law'. Which interests does 'case law' consider "compelling" and which spurious? Are there any consistent criteria applied to the judgement?


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## C_Clayton_Jones (Apr 14, 2016)

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A court order preempting a news outlet from disseminating the movement of troops during a time of war.

Government may place “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” (_Frisby v. Schultz_).

Child pornography.

Speech advocating for imminent violence or lawlessness.

Defamation

Remember that the burden of proof rests with government, it alone must justify its desire to limit or preempt citizens’ rights, and failing to do so, any act of government to restrict or preempt citizens’ rights will be invalidated by the courts.


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## dblack (Apr 14, 2016)

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Ok. Some examples. Thanks for that. But can you characterize any general principles that are being applied here? Obviously, government is supposed to protect our rights, so we might argue that it has a 'compelling interest' to regulate behavior that violates rights. Child abuse, inciting violence, libel, etc ... clearly fall under that rubric. I think the concept should be limited to that. But clearly it's not. My question is what other state interests justify limiting individual rights? How does the Court make this call? I'm honestly interested if you have any knowledge on the issue.

I guess this topic really dovetails back to the purpose of government. Is it there to protect our freedom to live as we wish, or to tell us how to live for the 'greater good' (again, whatever THAT is).


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## Publius1787 (Apr 14, 2016)

dblack said:


> Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.



It is a term that cannot be used unless you believe in the ever evolving constitution advocated by liberals. In this Machiavellian world both sides used compelling interests in cases where a level of scrutiny (I.e. strict scrutiny / also made up out of whole cloth by liberals) would traditionally render the act in question unconstitutional. There is no standard or definition of "compelling interest." It's simply an "out" granted by liberals on the Supreme Court so their past errors where they ruled beyond the confines of the U.S. Constitution cannot be overturned by a single case that proves their previous rulings to be ridiculously erroneous. You can use that for your definition.

If your want your head to seriously hurt, look up the liberal idea of "Substantive due process" and how liberals have used it to make up nonexistent rights.


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## Publius1787 (Apr 14, 2016)

Skylar said:


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I think the Supreme Court has effectively rendered the 10th Amendment virtually useless unfortunately.


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## Publius1787 (Apr 14, 2016)

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They're typically used as an release for when the made up rights out of the liberal substantive due process doctrine blows up in their faces.


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## Skylar (Apr 14, 2016)

Publius1787 said:


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Compelling government interest isn't explicitly defined, but it is more generally. The compelling government interest has to be necessary and crucial. Which raises the bar considerably. And most States arguing compelling government interest lose. Well over 70%. And its almost always the STATE or federal government arguing that such an interest exists.

Not the 'liberals on the supreme court'.

The strict scrutiny standard makes it harder for governments to impose rules that could limit rights. Not easier.


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## Publius1787 (Apr 14, 2016)

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The first example is an excellent one. The "right" of Gay marriage is nowhere to be found in the text, our history, or our traditions, but the Supreme Court made up an additional right out of substantive due process. Thus it was deemed incumbent on the states to prove a compelling interest to prevent a "right" that fails all Constitutional reasoning except for those who believe in substantive due process. Now I believe that gays should have the opportunity to be wed. But the legal reasoning behind it is a bastardization of the U.S. Constitution.


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## Skylar (Apr 14, 2016)

Publius1787 said:


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To a large extent that was the 14th amendment. As it applied the Bill of Rights to the States (eventually).....and it was that application that dramatically reduced the authority of the 10th amendment. Prior to the 14th amendment (and for quite a while after), the Bill of Rights didn't limit State action. And the States could do pretty much whatever they wanted to their citizen.

Though there are some pretty egregious examples of what you describe. The mind boggling legal acrobatics that goes into interpreting interstate commerce as being intrastate commerce would be one.


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## Skylar (Apr 14, 2016)

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The right to gay marriage was set up well in our legal precedent. The line from _Romer_ to _Lawrence_ to _Windsor_ to _Obergefell_ didn't involve any large leaps. With _Loving_ and other decisions making it clear that a right to marriage most definitely did exist.

The primary impediment to gay marriage as it relates to the institution itself.....wasn't gender. It was the power dynamic of marriage. In the past it was an expressly asymmetric relationship with a man leading and a woman being subordinate. The husband had far more rights and protections than did the wife. This made same sex unions fundamentally incompatible with marriage. As it was always the union of equals, which marriage never was. 

As the law changed and marriage became a legal union of equals with both parties having equal rights and protection.....the fundamental incompatibility between same sex unions and marriage disappeared.


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## Publius1787 (Apr 14, 2016)

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When I speak of liberals I mean how they have shaped the U.S. Constitution to bring us to this point and the use of stare decisis to cement today what was considered laughable years ago. When you argue before the Supreme Court it's like any other case, you're going to use the tools given to you whether you like them or not. Judges will often rule favorably on cases they would normally reject  because the case is decided on a narrow question and stare decisis is in play. First came "substantive due process" and then came "compelling interest" to make up for the flaws of "substantive due process." Compelling interests has always existed but not to the extent is has under substantive due process. The liberalization, for lack of a better term, of the Supreme Court has exploded this epidemic.

If Hamilton can argue that "necessary and proper" really means "convienant and useful" with the Supreme Court agreeing after much agitation from FDR over 100 years later, good luck keeping compelling interest to the standard of "necessary and crucial."


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## Publius1787 (Apr 14, 2016)

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Once again, Gay marriage is not sanctioned in the text of the U.S. Constitution, the history of our country/laws, nor the traditions of our country/laws. In fact, the history and traditions of our country reflects an nearly exclusive ban on gay marriage. No views of legal equality changes this fact. Once again I approve of gay marriage, just don't feed me the BS that the U.S. Constitution guarantees it as a right. It is another substantive due process fiction.


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## Publius1787 (Apr 14, 2016)

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At least they've finally limited the commerce clause. Obamacare did give us that.


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## dblack (Apr 15, 2016)

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The question of which rights government should protected (I've always seen 'all of them' as the correct answer) is really secondary to the topic. If we're discussing that, we're already on the same page, we're just discussing details. 

'Compelling state interest' becomes a problem when the 'interest' in question is something beyond protecting our rights. The 'compelling interest' excuse often promotes the idea that a government's well-being is more important than the liberty of its citizens. This is compounded by the majoritarian notion that government IS the people, that it is the ultimate representation of society. From that perspective, the argument boils down to the 'greater good' debate, which is essentially how 'compelling interest' is usually used.


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## Skylar (Apr 15, 2016)

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Can you give us a few examples of such. Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it. If a State is citing 'compelling government initerest'....it loses about 70% of the time.


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## dblack (Apr 15, 2016)

Skylar said:


> Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it.



That's how _you_ have characterized it, but that's not how it's used. The 'compelling interest' excuse is invoked to accommodate the government regulating behavior in ways that would otherwise be unconstitutional. It's used to _justify_ the exercise of government power, not limit it. It's seem odd that you're trying to invert it. What's your angle?



> Can you give us a few examples of such.



Are you being coy? Having opinions on what the subject, I assumed you were aware of examples. But what the hell, I'll play along. It's use to accommodate laws that violate individual rights rather than protect them: Drug prohibition, the various mandates of the ACA, most restrictions on religion and free speech are a few examples.


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## Skylar (Apr 15, 2016)

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I'm citing 'compelling government interest' as it was actually recognized: As a limit to government power, one of a checklist of conditions that had to be met before rights be significantly regulated by the State. Other such requirements would be that the measure was the absolute least interference with rights plausibly possible to reach that legitimate purpose of 'compelling government interest'.

If a State is tapping 'compelling government interest', *they're hitting the wall of the Strict Scrutiny test. A test the States overwhelmingly fail.* States when arguing 'compelling government interest' are trying to convince a judge that their laws meet the Strict Scrutiny standards.  Generally regarded as one of the strictest, most difficult to satisfy standards in all of law.

*The standard exists to limit state power. *The 10th amendment grants the States ridiculously broad powers. Ones that until the turn of the 20th century were generally untouchable by the federal judiciary as they related to individual rights. So the baseline were talking about is state power. There's not 'standard' that the State has to meet to act. They simply can. Rights were whatever the State said they were.

After judicial interpretations of the 14th amendment came closer in line with what its writers intended it to be.....the broad powers of the States were held to standards that limited their application in relation to rights. One of these limits.....was the Strict Scrutiny standard. Of which 'compelling government interest' was a part that had to be met before the State was allowed to act.

'*Compelling government interest' isn't a legal concept designed to *empower* states.* The States were already empowered under the 10th amendment. *It was a concept designed to empower individual rights*.....as it limited state power far more narrowly than the 10th amendment ever did.



> > Can you give us a few examples of such.
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Drug prohibition would be an issue of public safety. And public safety would definitely be a compelling government interest....as its both crucial and necessary. Whether the laws are plausibly connected to the end of public safety or if drug prohibition laws were the minimum the state could infringe on rights is thoroughly debatable.

But public safety being a compelling government interest really isn't.


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## Publius1787 (Apr 16, 2016)

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Indeed, but the gay rights example as ruled by the Supreme Court is the antithesis of the notion that "the government IS the people, that it is the ultimate representation of society"


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## dblack (Apr 16, 2016)

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I can't speak to the specifics of what you're referring to, but the most important role of the Court, in my view, is standing firm against the majority when what they want violates individual rights.


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## dblack (Apr 16, 2016)

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'Strict Scrutiny' exists to limit state power. 'Compelling Interest' is one of its exceptions - one of the ways government can get around strict limits on power.  Again, I'm curious why you're claiming otherwise. How do you think it changes the debate?


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## Publius1787 (Apr 16, 2016)

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The U.S. Constitution does not protect all individual rights. Your statement is like those who say that the role of the court is to ensure that rights are progressing in an evolutionary but correct direction. Well if you believe that the Constitution is nothing more than an empty sheet of paper that can mean whatever you want it to say and make it grant whatever rights you want to make up (like Gay marriage). The amendment process is there for a reason. But the hard work and practicality of the amendment process leads people to simply appoint judges who dive no deference to text, history, traditions and weigh heavily on outcomes and consequences (a relatively new and dubious means of interpreting law). With that view the U.S. Constitution can either go backwards or forwards on the individual rights front. No, we must define and keep the rights protected by the Constitution whilst not making up new ones that the Constitution clearly doesn't grant. Only then can we ensure that the rights you speak of will be permanent. The role of the SCOTUS is simple: Interpret what the law means. They aren't there to protect individual rights and to appoint someone on that grounds puts activist ideologues on the bench. The law should be first and foremost in their mind. Nothing else.


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## dblack (Apr 16, 2016)

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That's a matter of interpretation and opinion. Sad to say, your view currently prevails. Some argued against the Bill of Rights specifically because they feared it would be used to promote the idea that the only rights the Constitution protects are those explicitly listed. That's why they added the 9th Amendment. Sadly, it didn't work.


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## Publius1787 (Apr 16, 2016)

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All if it is a matter of interpretation and opinion. The question what methods of interpretation are best in keeping the court from legislating and keeping the U.S. Constitution from changing without the people's say. It is indeed offensive that people protest the SCOTUS over issues that aren't in the U.S. Constitution. They protest because court has become ideological, as if they were a branch of congress. Gay Marriage, Abortion, Affirmative Action: The U.S. Constitution sanctions none of it. gay marriage and abortion can be left up to the states (Democratic Choice), and Affirmative Action is clearly a violation of the equal protections clause unless you're a private university. Issues like these make a mockery out of the court.


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## Skylar (Apr 18, 2016)

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No more so than 'probable cause'. The Compelling interest is a standard that the State had to meet. Before Compelling Interest......there was 'whatever the fuck the state wanted to do'. Now they are limited to necessary and crutial interests rather than mere preferences. 

And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.


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## Skylar (Apr 18, 2016)

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I rarely have a problem with the courts recognizing new rights. As that is freedom from government action for individuals. I'm far more concerned with the courts recognize new powers or uphold powers over individual rights. 

The 9th amendment should generally trump the 10th in my opinion.


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## dblack (Apr 18, 2016)

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It's considerably "more so" [an exception to government power] than probable cause. 'Probably cause' is quite specific in comparison. Compelling interest has no such constraints, or at least none that I know about. I was hoping someone more knowledgeable in case law might be able to cite the guiding principles that the Court uses when assessing where such 'interests' are a valid use of government or not. Haven't found much in my own research.

Also, I've noticed you keep trying to suggest this is a state's rights issue, but I'm actually discussing its use by the federal government. This isn't about state's rights. It's a limited government debate,



> And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.



Heh... whatever. I'm still not sure what your angle is with this, but it seems irrelevant at best. My point is that compelling interest is too vaguely defined, and too broadly applied. It allows government to violate our rights for virtually any reason that Congress, and five SC Justices, find 'compelling'.


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## Skylar (Apr 18, 2016)

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Sure it does. It has to be necessary and crucial. Not simply preferential. And it has to be the minimum necessary to reach the compelling interest and no more.

With the restrictions before the Strict Scrutiny test being essentially nothing.

The Strict Scrutiny Test (and all of its criteria, including the Compelling Government Interest test) are limits to state power. Standards that the government has to meet before it can act. Where before there were no such limits and it could do essentially anything it wanted.



> I was hoping someone more knowledgeable in case law might be able to cite the guiding principles that the Court uses when assessing where such 'interests' are a valid use of government or not. Haven't found much in my own research.



Its pretty situational. 'Necessary' and 'crucial' tend to be the standards most commonly cited.



> Also, I've noticed you keep trying to suggest this is a state's rights issue, but I'm actually discussing it's use by the federal government. Not that it matters, it's the same debate. Point, it's not a state's right's debate. It's a limited government debate,



I don't believe I've even mentioned 'state's rights'. I may focus more on the application of the Strict Scrutiny standard as it applies to the State.....as the standard you cited in the OP was 'compelling state interest'. Which is a standard applies to States.

And perhaps because the State has such broad power to do pretty much whatever it wants in comparison to the Federal Government. Limited with such provisions like the Strict Scrutiny standard by individual rights. And limited in the past by nothing but their own will.



> > And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.
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My 'angle' is that before the 'strict scrutiny' standard....*.there was no restrictions.* The State could do pretty much whatever it wanted. The strict scrutiny standard (with the compelling government interest test being part of it) were applied to limit government action.

It would be akin to a road not having any speed limit. And then a speed limit of 65 being imposed. And you complaining that the speed limit existed to empower drivers to go as fast as they want.

Um, no. The speed limit exists to limit speeds. Just like the compelling government interest test exists to limit power.


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## dblack (Apr 18, 2016)

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Heh.. ok man. I don't get your fixation on the semantics of this, but have it your way. My complaint is with the vague, arbitrary nature of "compelling interest" as a criteria for allowing government to violate individual rights. It basically renders Constitutional limits on governments null. Which is what I'm calling 'bullshit' on.


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## KokomoJojo (Apr 24, 2016)

dblack said:


> Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.




it means they found a way to stick their heads up your ass and remove body parts.

You are precisely correct, they misuse it and of course you wont find any laws to prevent its misuse so once again the people are left out high and dry.


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## Skylar (Jul 29, 2016)

Publius1787 said:


> Skylar said:
> 
> 
> > Publius1787 said:
> ...



Once again, the Constitution is not an exhaustive list of rights. Making any insistence that that a given right be 'in the Constitution' a fundamental expression of misunderstanding of what the constitution is.

As for the 'history and tradition of our laws', marriage has been recognized as such for generations. Marriage was recognized a fundamental right at least 2 generations ago. With the legal and historic precedent of recognizing that gays have the same rights as straights going back decades.

I've even cited the cases for you: _Romer_, _Lawerence_, _Windsor_ and finally _Obergefell_. All of which you summarily ignore.

Which you have every right to. But its not like all of it disappears and ceases to exist because you ignore it.


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## heirtothewind (Jul 30, 2016)

A compelling government interest is one that is essential to maintaining an orderly and safe society.  Examples-

Recognized Compelling Governmental Interests (HSLDA | National Center Resource)


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