Does strict judicial scrutiny involve thetu quoque fallacy?

Law and Philosophy 9 (3):269 - 283 (1990)


To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute.

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