by Michael C. Dorf
Constitutional law is replete with tests that are not literally found in the text of the constitutional provisions the tests implement. For example, time, place, and manner restrictions on speech on government property that is a public forum are permissible so long as they are content-neutral and leave open adequate alternative opportunities for speech. Race-based classifications by government are impermissible unless they are the least restrictive means of advancing a compelling governmental interest. Police investigative activity constitutes a search within the meaning of the Fourth Amendment if it violates a reasonable expectation of privacy.
None of the italicized phrases in the foregoing paragraph appears in the relevant constitutional text. And while conservative scholars and jurists sometimes complain (selectively) about courts reading into the Constitution concepts that its text does not contain, they routinely apply existing tests and often formulate new ones. Tests that go beyond the literal text of the Constitution are essential to, in the words of Professor Richard Fallon, implement the Constitution.
Why are there so many constitutional tests that go far beyond the literal language of the text? Partly because the U.S. Constitution is short, but also because life is complicated. Given enough time and cases, even a constitution that partook of the prolixity of a legal code would generate numerous tests.
Because tests play such an important role in U.S. constitutional law, the most hotly contested issues often play out as fights over tests. Should race-based affirmative action programs have to meet strict scrutiny or merely intermediate scrutiny? Should infringements on firearms possession be measured by strict scrutiny, intermediate scrutiny, or a direct examination of text and history? Etc.
And yet, tests may be less important than meets the eye, for at least three reasons.