In our legal system, when the government does something funky, we use different standards to decide whether or not it was constitutional. While court rulings on questions of constitutionality don’t make for light reading, the idea of different standards of review is so intuitive that most people embrace the principle in their daily lives.

In law, strict scrutiny is the highest standard of judicial review. It gets triggered when considering a potential violation of a fundamental constitutional right, or when a suspect class is targeted.

In life, we do the same thing. It’s the essence of political correctness.

Outside of the courtroom, the tiny judges in our heads work furiously to pass micro-rulings in real-time. For efficiency’s sake, we use shortcuts, like strict scrutiny.

Say you’re at a dinner party and someone tells a joke that involves putting on an accent. How do you react? Probably depends on the accent, right? Imagine it’s British. Now French. Now Mexican. Now Nigerian. Alright, how about a joke that relies (as jokes often do) on some gross generalization about janitors? Red Sox fans? Hispanic people? Any difference in your reaction? That’s you employing differing standards of judicial review. A friend said yesterday that she’d “never date a guy with a man bun,” and I laughed and pulled up a Buzzfeed post to show her how misguided she was. I wonder how I would have reacted if she’d said “I’d never date a black guy.” Probably with stricter scrutiny than the Man Bun comment.

So, using clean legal principles, we can cure society of uncomfortable social ills, right? No more hurt feelings, no more awkward dinner party moments? Wrong. The trouble is, in life we don’t have a written constitution, centuries of court rulings and scholarly writings to draw upon, and abundant time to reach a decision. Turns out, so many “did he really just say that?” moments can be attributed to disagreements over real-life versions of four constitutional principles. They are: suspect classification, fundamental rights, compelling interest, and narrowly tailored/least restrictive means. In other words, when it comes to jokes, the first two trigger scrutiny (whether you look around first to decide whether to laugh) and the second two determine whether you feel bad about laughing later on.

Race, religion, natural origin, and alienage. The Supreme Court has established all of these as suspect classes, considering factors like history of discrimination and being “discrete and insular minorities” (or being unable to protect themselves through ordinary political processes). In real life, depending on your view of history and life experiences, you may adopt only these classifications, or you may add some of your own like gender, sexual orientation, being a survivor of domestic abuse, gun ownership status, income, etc. But when you interact with others, if you’re not on the same page about what counts as a suspect class, you’re bound to run into some awkward moments. When you start hearing things like “don’t be so sensitive,” or “why are you taking this so seriously?” what you might have is a suspect classification issue.

The other strict scrutiny trigger is the endangering of a fundamental right. Our centuries-old constitution isn’t always crystal clear about what counts as a fundamental right, so judges rely heavily on previous court rulings, history, scholarly legal writings, and more to figure out in what is constitutionally guaranteed in our rapidly changing world. In real life, in the absence of all that, it’s no surprise that different priorities lead us to clash. While we may agree it would be nice not to be made fun of or have one’s feelings hurt, we may not agree on how important that is. Growing up in different homes in which some tenets are more central than others, one can imagine that we reach adulthood with different conceptions of how strong certain ‘rights’ are.

It doesn’t help that rights can be deeply contextual, creating confusion for outsiders. Quebec’s Bill of Rights equivalent guarantees against discrimination based on language, because they’re touchy about the French issue. That some US states recognize marriage equality, or have stronger state constitutional provisions concerning access to education or abortion, highlights that who and where you are can seriously affect what rights you consider fundamental. These particularities exist in real life too. You learn not to bring up the 2010 World Cup game against Uruguay to a room full of Ghanaians the same way you might think twice about making a women’s rights joke in a room full of feminists. When you hear something like “that’s in bad taste” or “yikes, don’t joke about that,” what you might have is differing opinions on what constitutes a fundamental ‘right.’

After we’ve triggered strict scrutiny with a suspect class and/or a fundamental right, how do we decide whether it was worth it? The courts say the first step is establishing a “compelling interest.” Certain kinds of affirmative action have been upheld because even though racial classification is definitely suspect, ensuring a diverse student body is a compelling interest. [Regents of the University of California v. Bakke (1978)] If someone tells a race-based joke, you’ll be more likely to sign off on it if you find a compelling interest in funny things being said. Other compelling interests could be being honest or transparent, which, depending on the person, might justify saying you’d never date someone with a Man Bun or who happened to black.

And finally, even after finding a compelling interest, courts need to make sure that the offensive element is narrowly tailored and as minimally restrictive as possible. We do the same. Questioning whether a racial quota in admissions is the narrowest way to achieve diversity becomes wondering whether that joke could have been just as funny without being so offensive. Did the dentist have to be Jewish? Did the bartender have to be Chinese? Etc.

Our borrowed legal instincts can be a wonderful tool to make social interaction more efficient, but we get into trouble where legal standardization isn’t available in the real world. The remedy to awkward or hurtful social moments probably isn’t some grand and comprehensive list of what’s okay to say and what isn’t – sterilizing discourse through casual censorship is as problematic as it is impractical. But lessons from constitutional jurisprudence might suggest that the roots of some casual conversational tensions may be shallower than we think. Rather than deliberate antagonism or insensitivity, discrepancies in popular understandings of suspect classification, fundamental rights, compelling interest and narrow tailoring may be part of the story. If that’s the case, a crucial step forward is identifying and articulating these discrepancies, or having a critical conversation in your social circles about what and why you consider to be suspect, fundamental, and so on. Rather than a shortcut to a predetermined outcome, scrutiny provides a lens through which to initiate careful and considerate review, to enable and furnish rather than stifle discussion. At the very least, a more faithful following of these principles can help separate deep disagreements from nontrivial but largely technical misunderstandings. With the minefield of political correctness growing by the day, we run the danger of misusing the legal tools we’ve adopted. Rather than skipping to the end, let scrutiny be the start.

 

 

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