Constitutional Law Outline
Professor Mazur, Spring 2010
Professor Mazur, Spring 2010
! ! us.docsity.com!
I. Fundamental Rights Under Due Process and Equal Protection
A. Introduction:
I. The Court has held that some liberties are so important that they are deemed to be "fundamental
rights" and that generally the government cannot infringe them unless strict scrutiny is met
II. What the Court has ruled on
1. Freedom of speech and religious freedom also are deemed fundamental rights
2. Invalidated laws restricting access to contraceptives both as violating equal protection and as
infringing on the right to privacy
3. Rights to marry is a fundamental right protected by the majority under equal protection and
concurring opinion under due process
4. Determined that the word “liberty” in the Due Process Clause to mean that parents have a
fundamental to custody of their children
III. For most of these rights the Court has indicated that strict scrutiny should be used
IV. Court must decide whether a claimed liberty is sufficiently important to be regarded as
fundamental, even though it is not mentioned in the text of the constitution.
V. If the law denies the right to everyone, then due process would be the best grounds for analysis;
but if a law denies a right to some, while allowing it to others, the discrimination can be
challenged as offending equal protection or the violation of the right can be objected to under due
process
VI. The Ninth Amendment
1. 9th amendment is often mentioned in discussion of fundamental rights, especially rights not
expressly mentioned in the text of the constitution as it states: “The enumeration of the
Constitution of certain rights, shall not be construed to disparage others retained by the
people.”
2. Court rarely invokes the 9th Amendment with the exception of Griswold v. Connecticut
3. It is used to provide textual justification for the Court to protect non-textual rights, such as the
right to privacy
VII. Procedural Due Process
1. When the government takes away a person’s life, liberty, or property it must provide
adequate procedures
B. Framework for Analyzing Fundamental Rights
I. Is There a Fundamental Right?
1. If fundamental = strict scrutiny, if not = rational basis
2. There is a debate over how the Court should decide what rights are fundamental and
particularly whether it should find fundamental rights that are not supported by the text or the
clear intent of the framers
a. Originalists: take the position that fundamental rights are limited to those liberties
explicitly stated in the text or clearly intended by the framers.
b. Non-originalism: view that it is permissible for the Court to protect fundamental rights
that are not enumerated in the Constitution or intended by the drafters
