Academic Legal Writing - Eugene Volokh [17]
Thus, a proposal such as “gun control laws should be examined to see if they are substantially related to an important government interest [i.e., intermediate scrutiny]” doesn't really mean much by itself. To be helpful, the proposal must explain which interests qualify as important and what constitutes a substantial relationship.
Nor is it enough just to say “the courts should borrow the intermediate scrutiny caselaw from other contexts.” The intermediate scrutiny tests differ in different contexts, both on their face and as applied. Intermediate scrutiny in sex classification cases, for instance, has a reputation for being a very demanding test, while intermediate scrutiny of restrictions on expressive conduct has generally proven to be deferential; and if you look closely at the elements of the two tests, you'll find that they differ significantly, and for good reasons (since the underlying constitutional concerns animating the tests are different). Similarly, intermediate scrutiny in commercial speech cases was fairly deferential in the mid–1980s, but became much more demanding in the 1990s and early 2000s, all the while being called “intermediate scrutiny.”
The solution is, in Justice Holmes's phrase, to “think things not words.”1* Rather than relying on words such as “substantially,” “important,” or “intermediate,” explain which interests may justify the restriction and which may not. Explain when restrictions should be allowed to be overinclusive or underinclusive and when they should not be. Explain when courts should demand empirical evidence that the law serves its goals and when they can rely on intuition. Of course, you may not be able to cover all possible situations, and in some cases where the question is close, your test may properly leave things ambiguous. But the more concrete your proposal, the better.
Again, test suites (see Part II) can help you identify this problem and refine your claim: Just as in the previous subsection, applying your proposed test to a set of concrete problems can help you see whether it has substance or is just words.
3. Avoid procedural proposals that don't explain what substantive standards are to be applied
Procedural proposals can be useful: It's often impossible or politically impractical to design the right substantive rule up front, so the best we can do is set up the procedures that will make it more likely that the right rule will eventually emerge. The Constitution itself, for instance, was intended to protect liberty largely through procedural structures, such as bicameralism, separation of powers, and the like. If you genuinely think that the right answer to your problem is better procedures, you should propose that.
But remember that courts and administrative judges, unlike legislatures, are generally required to apply a substantive rule, even if a vague one. It's not enough just to set forth procedures through which these bodies act—if your proposal asks such entities to review something, it has to tell them what rule they should apply.
Thus, say that you want to limit speech restrictions imposed on students by K–12 school officials; but because you recognize that it's hard to have a clear rule establishing which restrictions are good and which are bad, you propose a statute that requires that any such restrictions be reviewed by administrative law judges. This might be a good solution, but you need to ask: What substantive test should these judges apply?
Your answer might be “the judges must make sure any restriction is constitutional”; but if that's so then (1) you should make that clear, (2) you should explain why you think including administrative law judges as