Fundamental Rights Introduction

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• Fundamental Rights - Introduction

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What are Fundamental Rights?
what makes them fundamental?

• Constitutional Rights
• First 8 amendments
• External (non-constitutional) Rights
• 9th Amendment
• The enumeration in the Constitution, of certain
  rights, shall not be construed to deny or
  disparage others retained by the people
• 14th Amendment
• No state shall deprive any person of life,
  liberty, or property, without due process of law

is this an invitation to find other rights?
used also as source of external rights
used to incor- porate the BoR
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Finding Fundamental Rights
at what level of gener-ality (or abstraction)
should we interpret the framers intent?

• Textual Rights (interpretivism)
• Textualism
• Originalism
• Dynamic/Organic
• Non-Textual Rights (non-interpretivism)
• Natural law, common law, traditions
• Example
• Right to engage in stem-cell research

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When is a right denied/deprived?

• Prohibition on exercise
• Burdens on exercise
• Licensing, taxing, regulating
• Unequal allocation
• e.g., voting
• Refusal to fund (or facilitate)
• Intentional vs negligent interference
• Intent required under FR strand of EP as with
  Suspect Class strand

these types of burdens may violate EP, but not DP
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State-Created Rights

• Not fundamental because not created by
  constitution
• Rational Basis review
• Procedural Due Process
• Applies to both fundamental and state-created
  rights
• Takings Clause
• Whether an interest constitutes property
  depends on state law
• If it does, it is protected by 5th Amendment

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The Right to Marry

• Loving v. Virginia (1967)
• Two-fold EP problem
• Discrimination against Suspect Class
• Discrimination with respect to exercise of Fund
  Rt
• Source of Right
• Basic civil right of man
• Fundamental to our very existence
• Essential to pursuit of happiness
• Decl. of Ind. not normally used as source of
  rights
• 14th Amendment Liberty

the first three are external sources
What is extent of liberty interest?
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Zablocki v. Redhail (1978)

• Is right denied or merely burdened?
• Uniform license requirement is not so onerous as
  to trigger strict scrutiny
• reasonable regulations may legitimately be
  imposed
• Is the burden imposed on everyone, or on just a
  particular class of persons?
• Is this a suspect class?
• Does the burden affect the exercise of a
  fundamental right?
• Textual or non-textual?

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Zablocki v. Redhail (1978)

• Textual
• free exercise of religion
• freedom of speech assembly
• no quartering of soldiers
• security in persons houses
• due process liberty
• What interpretivist methodology involved?
• Organic (intent at a high order of generality)
• Search for first principles

taken together, these suggest a right of privacy
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Zablocki v. Redhail (1978)

• Liberty
• Freedom from physical restraint
• Freedom of choice?
• First is the autonomous control over the
  development and expression of one's intellect,
  interests, tastes, and personality.
• Second is freedom of choice in the basic
  decisions of one's life respecting marriage,
  divorce, procreation, contraception, and the
  education and upbringing of children.
• Third is the freedom to care for one's health and
  person, freedom from bodily restraint or
  compulsion, freedom to walk, stroll, or loaf.

J. Douglas, in Doe v. Bolton (1973)
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Other family rights (DP Liberty)

• Divorce
• Procreation
• Rearing of children
• Contraception
• Abortion
• Sex

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Zablocki v. Redhail (1978)

• Standard of Review Strict Scrutiny
• ENDS (Compelling State Interest)
• Welfare of other non-custodial children
• MEANS (Closely Tailored)
• Cant marry (if in arrears on child-support)
• How does this advance States (compelling)
  interest?
• Are there less restrictive means available?
• Wage garnishment
• civil contempt
• criminal penalties
• Both under- over-inclusive (poor fit)

the existence of less restrictive means will doom
any law subject to SS
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Zablocki v. Redhail (1978)

• Stewart (Concurring)
• Not all restrictions on marriage are unconstl
• Minors, relatives, bigamy, polyandry
• Is that because no fund.rt. involved, or
  satisfies SS?
• Depends on how one characterizes the fundamental
  right involved
• The right-to-marry in general
• The right-to-marry an unmarried adult person of
  the opposite sex, not less than 2 degrees of
  affinity away

Once a fundamental right is identified, how
broadly should it be characterized?
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Zablocki v. Redhail (1978)

• Why DP rather than EP?
• Burdening any DP (negative) right triggers SS
• DP fundamental rights are automatically EP fund.
  rts.
• Some rights are fundamental under EP, but not
  under DP
• This is the SUBSTANTIVE component of EP
• Stewart feels there is only a PROCESS component
• Discriminating wrt DP or EP fundamental right
  also triggers strict scrutiny
• but examination of MEANS is focused on the line
  of discrimination
• May be easier to invalidate law under EP than DP

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Im/permissible Burden on Fund Rt

• When does a burden rise to the level of a denial
  or deprivation?
• Califano v. Jobst (1977)
• Loss of SS disability benefits for dependent
  children upon their marriage
• Bown v. Owens (1986)
• Loss of survivor benefits to remarrying divorced
  spouse