Civil Rights and Discrimination | Constitutional Law
This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty-whether or not expressly enumerated in the Bill of Rights-is a "fundamental" right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest. Because the "strict" scrutiny which applies to laws that affect fundamental rights in either of these two ways is usually "fatal," whether to designate a right as fundamental poses a central substantive question in modern constitutional law.
Tribe, Laurence H. and Dorf, Michael C., "Levels of Generality in the Definition of Rights" (1990). Cornell Law Faculty Publications. Paper 122.
University of Chicago Law Review, vol. 57, no. 4 (Fall 1990)