Individual rights - Fundamental rights

Learning Outcomes

After reading this article, you will be able to identify which rights are considered fundamental for MBE purposes, distinguish between substantive and procedural due process, apply the correct level of scrutiny to government action affecting fundamental rights, and analyze how equal protection and due process interact in exam scenarios. You will also be able to answer MBE-style questions on strict scrutiny and fundamental rights.

MBE Syllabus

For the MBE, you are required to understand how the Constitution protects individual fundamental rights and how courts review government action affecting those rights. This article focuses on:

  • Recognizing which rights are classified as "fundamental" for constitutional law.
  • Differentiating between substantive due process and equal protection claims.
  • Applying strict scrutiny to government action affecting fundamental rights.
  • Understanding the burden of proof in fundamental rights litigation.
  • Identifying the relationship between classifications and the appropriate level of scrutiny.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT considered a fundamental right for purposes of strict scrutiny?
    1. Marriage
    2. Voting
    3. Freedom of contract in business
    4. Parental control over child upbringing
  2. A state law prohibits all persons under 21 from purchasing alcohol. Which level of scrutiny applies to this classification?
    1. Strict scrutiny
    2. Intermediate scrutiny
    3. Rational basis review
    4. Fundamental rights review
  3. When government action substantially interferes with a fundamental right, who bears the burden of proof?
    1. The challenger, to show the law is not rational
    2. The government, to show the law is necessary to a compelling interest
    3. The challenger, to show the law is not substantially related to an important interest
    4. The government, to show the law is rationally related to a legitimate interest

Introduction

Fundamental rights are individual liberties and interests that receive the highest level of constitutional protection. When government action restricts a fundamental right, courts apply strict scrutiny and usually strike down the law unless it is necessary to achieve a compelling government interest. For the MBE, you must know which rights are fundamental, how to analyze government action affecting them, and how due process and equal protection doctrines interact.

Identifying Fundamental Rights

Fundamental rights are those explicitly or implicitly protected by the Constitution and recognized by the Supreme Court as essential to liberty or autonomy. The main fundamental rights tested on the MBE are:

  • Marriage
  • Procreation and contraception
  • Parental control over child upbringing and education
  • Family living arrangements
  • Voting and ballot access (with exceptions for age, residency, and citizenship)
  • Interstate travel
  • Privacy (including intimate sexual conduct)
  • First Amendment freedoms (speech, religion, association)

Key Term: Fundamental Right A right that receives heightened constitutional protection, so that government action restricting it is subject to strict scrutiny.

Due Process: Substantive and Procedural

Government action can violate due process in two ways:

  • Substantive due process protects fundamental rights from unjustified government interference, regardless of the procedure used.
  • Procedural due process requires fair procedures (notice and hearing) before depriving a person of life, liberty, or property.

Key Term: Substantive Due Process The doctrine that certain rights are so fundamental that government may not infringe them unless the law is necessary to achieve a compelling interest.

Key Term: Procedural Due Process The requirement that government follow fair procedures before depriving a person of life, liberty, or property.

Equal Protection and Fundamental Rights

When a law creates a classification (e.g., by age, gender, or marital status), equal protection analysis applies. If the classification burdens a fundamental right, strict scrutiny is triggered, and the law is usually struck down unless it is necessary to achieve a compelling interest.

Key Term: Strict Scrutiny The highest level of judicial review, requiring the government to prove a law is necessary to achieve a compelling interest and is narrowly tailored.

Levels of Scrutiny

  • Strict scrutiny: Applies to laws affecting fundamental rights or using suspect classifications (race, national origin, some alienage). The government must prove the law is necessary to achieve a compelling interest.
  • Intermediate scrutiny: Applies to quasi-suspect classifications (gender, legitimacy). The government must show the law is substantially related to an important interest.
  • Rational basis review: Applies to all other classifications or non-fundamental rights. The challenger must show the law is not rationally related to a legitimate interest.

Burden of Proof

For strict scrutiny, the government bears the burden of proof. For rational basis, the challenger bears the burden.

How to Analyze Fundamental Rights on the MBE

  1. Is there a government action? Only government action (not private conduct) is subject to constitutional review.
  2. Does the law burden a fundamental right? If yes, apply strict scrutiny.
  3. Is there a classification? If the law treats people differently and burdens a fundamental right, strict scrutiny applies under equal protection.
  4. What is the government's interest? Is it compelling, important, or legitimate?
  5. Is the law necessary and narrowly tailored? For strict scrutiny, the law must be the least restrictive means.

Worked Example 1.1

A state law prohibits all unmarried adults from adopting children. Is this law likely to be constitutional?

Answer: No. The right to family formation and child-rearing is fundamental. The law burdens this right and must satisfy strict scrutiny. The state would need to prove the law is necessary to achieve a compelling interest and is narrowly tailored. A blanket ban on unmarried adults adopting is not narrowly tailored and will almost certainly fail strict scrutiny.

Worked Example 1.2

A city requires all residents to obtain government approval before moving to another state. Does this violate a fundamental right?

Answer: Yes. The right to interstate travel is fundamental. Any restriction on moving between states must satisfy strict scrutiny. The city would need to show the law is necessary to achieve a compelling interest, which is highly unlikely.

Worked Example 1.3

A state law requires all voters to pass a literacy test. Is this subject to strict scrutiny?

Answer: Yes. Voting is a fundamental right. Any law that restricts access to the ballot (other than for age, residency, or citizenship) is subject to strict scrutiny. Literacy tests are not necessary to achieve a compelling interest and are unconstitutional.

Exam Warning

Laws that merely regulate economic activity, business, or social welfare (such as minimum wage laws or housing codes) are not subject to strict scrutiny. Do not confuse economic rights with fundamental rights.

Revision Tip

Memorize the list of fundamental rights and the strict scrutiny test. If a law burdens a right not on the list, rational basis review almost always applies.

Key Point Checklist

This article has covered the following key knowledge points:

  • Fundamental rights include marriage, procreation, parental control, voting, interstate travel, privacy, and First Amendment freedoms.
  • Government action burdening a fundamental right is subject to strict scrutiny.
  • Strict scrutiny requires the law to be necessary to achieve a compelling interest and narrowly tailored.
  • Substantive due process protects fundamental rights from unjustified government interference.
  • Equal protection applies strict scrutiny when a classification burdens a fundamental right.
  • The government bears the burden of proof under strict scrutiny.
  • Economic and social legislation is not subject to strict scrutiny.

Key Terms and Concepts

  • Fundamental Right
  • Substantive Due Process
  • Procedural Due Process
  • Strict Scrutiny
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