1. Constitutional Law II Spring 2005Con Law II1 Fundamental Rights - Introduction

2. Spring 2005Con Law II2 What are Fundamental Rights? Constitutional Rights First 8 amendments External (non-constitutional) Rights 9 th Amendment  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” 14 th Amendment liberty  “No state shall “deprive any person of life, liberty, or property, without due process of law” what makes them “fundamental”? is this an invitation to find other rights? used to “incor- porate” the BoR used also as source of external rights

3. Spring 2005Con Law II3 Finding Fundamental Rights 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 at what level of gener- ality (or abstraction) should we interpret the framer’s intent?

4. Spring 2005Con Law II4 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

5. Spring 2005Con Law II5 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 5 th Amendment

6. Spring 2005Con Law II6 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 14 th Amendment “Liberty” the first three are “external” sources What is extent of “liberty” interest?

7. Spring 2005Con Law II7 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?

8. Spring 2005Con Law II8 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”

9. Spring 2005Con Law II9 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)

10. Spring 2005Con Law II10 Other “family” rights (DP Liberty) Divorce Procreation Rearing of children Contraception Abortion Sex

11. Spring 2005Con Law II11 Zablocki v. Redhail (1978) Standard of Review – Strict Scrutiny ENDS (Compelling State Interest) Welfare of other non-custodial children MEANS (Closely Tailored) Can’t marry (if in arrears on child-support)  How does this advance State’s (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

12. Spring 2005Con Law II12 Zablocki v. Redhail (1978) Stewart (Concurring) Not all restrictions on marriage are unconst’l  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?

13. Spring 2005Con Law II13 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

14. Spring 2005Con Law II14 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