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Imprisonment, Incarceration, Fundamental rights doctrine, Strict scrutiny review, Due process, Liberty


Constitutional Law | Criminal Law | Fourteenth Amendment


American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right. She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even if the government lacks a compelling interest in preventing the conduct. Professor Colb argues that a governmental decision to restrict a person's fundamental freedom from incarceration, like the decision to restrict any other fundamental right, should be subjected to strict scrutiny. She demonstrates the inadequacy of possible justifications for the Supreme Court's present failure to protect the freedom from incarceration. Finally, Professor Colb begins the process of scrutinizing decisions to incarcerate by positing possible applications of her theory.

Publication Citation

Published in: New York University Law Review, vol. 69, no. 4-5 (October-November 1994).