No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?
The courts repeatedly say that claims of constitutional rights must give way to government interests.The courts even sometimes say that a compelling government interest justifies the infringement of a right – as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." In support of such doctrine, it often is said that rights are "not absolute."
This sort of analysis of rights and government interests raises a profoundly important question about the structural relationship between rights and power. Which type of claim is superior? And which is subordinate? Put another way, is government power subject to rights, or are rights subject to government power? The Supreme Court itself has begun to ask such questions – as when the Court, in Citizens United v. Federal Election Commission, recognized the possibility that political speech may stand beyond any government interests – the possibility that "political speech simply cannot be banned or restricted as a categorical matter.But the Court left the question unanswered and thereby has continued to leave even enumerated rights subject to power.
One might expect that rights would have the upper hand. Much traditional Anglo-American political theory suggested that rights prevailed over power, and American constitutions enumerated rights to overcome the power granted to government. Contemporary judicial doctrine, however, reaches a different conclusion. It subjects enumerated rights to compelling government interests and thereby inverts the theoretical and constitutional relationship of such rights and government power.
Elements of this argument are familiar. Ronald Dworkin's description of rights as "trumps" nicely captures how rights ideally operate to defeat other claims – most significantly, claims of power. Without relying on Dworkin's understanding of the matter (which has been disputed), and without claiming that all rights are trumps, this Article argues that enumerated constitutional rights should be understood to trump power and that the contrary position overturns their relationship to power.
Philip A. Hamburger,
The Inversion of Rights and Power,
Buff. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1103