Dorf, Morrison, Fundamental Rights, and Strict Scrutiny

Tuesday I went to a celebration of a new book by Mike Dorf and Trevor Morrison, The Oxford Introductions to U.S. Law: Constitutional Law. The book is splendid: smart, wise, succinct. It is a book well calculated to reach its target audience: students, professors, and a lay audience. This was no easy task, but they have pulled it off.

One thing that came up in the discussion was the question whether strict scrutiny does or should apply to fundamental rights. Jim Fleming argued that it is mythical to suppose that strict scrutiny applies in due process cases and the book maintains that the cases have meandered on this issue. Fleming argues that the “myth” makes it more difficult to establish new fundamental rights in due process. (I would think the current composition of the Court has more to do with it).

I agree with Fleming, however, that the recognition of a new fundamental right should not automatically trigger strict scrutiny. Indeed, strict scrutiny apples to part of First Amendment law. No one could fairly claim that the law of defamation, obscenity, or intellectual property has been marked by the application of strict scrutiny.

Fleming thinks a progressive agenda is compromised by having only two standards of review. I am guessing that Fleming thinks that Roe was rightly decided. One of the things that made Roe an easy case (once a fundamental right was recognized) was that Texas could not demonstrate (particularly given good faith societal disagreement) that the preservation of a fetus was a compelling state interest. If some form of middle level scrutiny were applied, Texas might have had an easier task.

If Fleming is right that the recognition of a new fundamental right should not automatically trigger strict scrutiny, this might prompt discussion of the factors that dictate higher or lower levels of scrutiny across the panoply of enumerated and unenumerated liberty rights. As Dorf and Morrison well argue, the difference between these types of rights is not great.

Comments

[Mike Dorf]

Hey Steve,

Thanks for the shout! One place where we're likely to see this issue play out over the next few years is the Second Amendment. Neither Heller nor McDonald specifies a standard of review for firearms regulations--though in reassuring people that Heller still permits regulations of, e.g., firearms in public buildings, Justice Scalia says some things that could suggest less than strict scrutiny.