Fundamentally Wrong about Fundamental Rights

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INTRODUCTION

If there is one phrase that every student of constitutional law learns, it is that fundamental rights trigger strict scrutiny. As Justice William Brennan Jr. wrote, "a government practice or statute which restricts 'fundamental rights' or which contains 'suspect classifications' is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available." (1) According to Justice Clarence Thomas, "strict scrutiny" is the "appropriate standard" for "infringements of fundamental rights." (2) Justice Antonin Scalia has recognized that "strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.'" (3)

There is one small problem with this well-worn adage. It is simply not true. Fundamental rights do not trigger strict scrutiny, at least not all of the time. In fact, strict scrutiny--a standard of review that asks if a challenged law is the least restrictive means of achieving compelling government objectives--is actually applied quite rarely in fundamental rights cases. Some fundamental rights trigger intermediate scrutiny, while others are protected only by reasonableness or rational basis review. Other fundamental rights are governed by categorical rules, with no formal "scrutiny" or standard of review whatsoever. In fact, only a small subset of fundamental rights triggers strict scrutiny--and even among those strict scrutiny is applied only occasionally. In short, the notion that government restrictions on fundamental rights are subject to strict scrutiny review is fundamentally wrong.

Part of the problem may be that the Supreme Court has never bothered to define with any precision what counts as a "fundamental right." There are at least three possible definitions. First, following footnote four of United States v. Carolene Products Co., (4) we might consider all of the individual rights guaranteed in the first eight amendments in the Bill of Rights to be fundamental. Second, we might alternatively view all of the provisions of the Bill of Rights that have been incorporated to apply against the states to be fundamental; the test for incorporation asks if a right is fundamental to American political institutions and our system of justice. Finally, we might define as fundamental those rights that have been thought of as "preferred rights" because of their role in promoting human dignity or democratic self-government. Any way you slice it, however, not all fundamental rights trigger strict scrutiny.

I consider each of these three definitions of fundamental rights and show that, regardless of the definition used, the old saying about strict scrutiny is descriptively wrong. Laws infringing upon fundamental rights are sometimes subject to strict scrutiny, but often they are not.

I. THE FUNDAMENTAL BILL OF RIGHTS

Like so much of modern American constitutional law, the false notion that laws infringing upon fundamental rights are reviewed under strict scrutiny has roots in footnote four of Carolene Products. Justice Harlan Fiske Stone famously wrote, "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments." (5) Ever since, constitutional law professors have taught their students that the individual rights guarantees found in the Bill of Rights trigger heightened review, while economic rights (such as those read into the Fourteenth Amendment's due process clause by the Lochner Court) (6) receive only rational basis protection. And half of that lesson is true. But that half is the part about economic rights, not the part about heightened review for the rights spelled out in the text of the Bill of Rights.

The Court has never purported to apply strict scrutiny in every provision of the Bill of Rights. …