Sunday, March 25, 2012



  • Gov’t can’t infringe upon fundamental rights unless strict scrutiny is met.
  • Broadening beyond EP Clause to protect rights. Often source of protection is grounded in due process laws. “No person can be deprived of life, liberty or property without due process of law.”
  • EP has to do with the classification itself; due process, on the other hand, has to do with whether an individual is appropriately classified.
  • Since fundamental rights are not enumerated rights, states are our protector of these rights. Bill of Rights only applied to the federal government.
  • The court is not consistent as to what extend the 14th A. incorporates the rights in the first 8 amendments from federal intrusion.
  • Under §5 of the 14th A., Congress has the authority to enforce whatever provisions necessary for the implementation of the 14th A.
  • Right to travel, right to vote both protected under EP clause.
  • Most rights protected under DP and EP.
  • If right protected under DP, issue is if the government’s interference is justified by a sufficient purpose (this used if right denied to everyone). If under EP, the issue is if the government’s discrimination re: who can exercise the right is justified by a sufficient purpose (this used if right denied only to some.)
  • DP Analysis: If a right is found to fall under substantive due process, the constitutional issue is whether the government’s interference is justified by its public purpose. If the right is fundamental, that purpose must be compelling.
EP Analysis: If analyzed under EP, government’s purpose is presumed to be legitimate and the focus is on the classification as to who can exercise the right.
  • Four prong test:
  1. Is there a fundamental right?
  2. Is the constitutional right infringed?
  3. Is there a sufficient justification for the government’s infringement of a right?
  4. Is the means sufficiently related to the purpose?
  • In determining Fundamental Rights, can look to: text, historical intend, precedent, national rights theory, representative reinforcement.
  • Three sources to look for fundamental rights in 14th A.=>P or I, DP, EP

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