The Origin of the Compelling State Interest Test and Strict Scrutiny


This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny’s compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and that its birthing process was not complete until 1963. At that time, the compelling interest standard coalesced with the First Amendment’s narrow tailoring requirement, which was decades older, to form modern strict scrutiny.

The Article also argues that it took another six years for the component parts of strict scrutiny to migrate from the First Amendment to the Equal Protection Clause. The compelling state interest standard was the last component to make the move. When it did, strict scrutiny rapidly blossomed into one of the late-twentieth century’s most fundamental constitutional doctrines.

In addition to establishing the First Amendment origin of the compelling state interest test and strict scrutiny, this Article discusses the revised history for the light it sheds on strict scrutiny’s rationale, arguing that strict scrutiny began as a tool of cost-benefit analysis, not as a means to ferret out illicit governmental motive. It also says the revised history supports the view that over time the Court has shifted the Equal Protection Clause’s “core value” from a proscription of racial subordination to forbidding racial classification.


Constitutional Law | Legal History

Date of this Version

August 2006