Document Type

Article

Publication Date

Fall 1990

Disciplines

Civil Rights and Discrimination | Constitutional Law

Abstract

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.

Publication Citation

University of Chicago Law Review, vol. 57, no. 4 (Fall 1990)