## **Learning Outcomes**

After reading this article, you will be able to identify which rights are fundamental under the U.S. Constitution, distinguish between substantive due process and equal protection claims, apply the correct level of scrutiny to government action affecting fundamental rights, and recognize how these principles are tested on the MBE.

## **MBE Syllabus**

For the MBE, you are required to understand the constitutional protection of fundamental rights and the standards used to review government action affecting those rights. This article covers:

- Recognizing which rights are "fundamental" for due process and equal protection purposes.
- Distinguishing between substantive due process and equal protection claims.
- Applying strict scrutiny, intermediate scrutiny, or rational basis review as appropriate.
- Identifying when government classifications or regulations trigger heightened scrutiny.
- Understanding the burden of proof in fundamental rights litigation.

## **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 a fundamental right for substantive due process purposes?  
   a) The right to pursue a specific occupation  
   b) The right to marry  
   c) The right to receive government subsidies  
   d) The right to drive

2. A state law prohibits all unmarried individuals from purchasing contraceptives. What is the most appropriate standard of review?  
   a) Rational basis  
   b) Intermediate scrutiny  
   c) Strict scrutiny  
   d) Reasonableness

3. If a state law substantially interferes with a fundamental right, who bears the burden of proof in court?  
   a) The challenger of the law  
   b) The government  
   c) The jury  
   d) The legislature

4. Which of the following classifications is subject to intermediate scrutiny under the Equal Protection Clause?  
   a) Race  
   b) Gender  
   c) Age  
   d) Wealth

## **Introduction**

Fundamental rights are those liberties the U.S. Constitution protects most strongly against government interference. If a law substantially impairs a fundamental right, courts apply strict scrutiny and the government must show the law is necessary to achieve a compelling interest. If a right is not fundamental, only rational basis review applies. Understanding which rights are fundamental and how courts review government action affecting them is essential for MBE success.

### Identifying Fundamental Rights

Fundamental rights are not listed in one place in the Constitution. Instead, courts have recognized certain rights as fundamental under substantive due process and equal protection analysis. These include:

- The right to marry
- The right to procreate and use contraception
- The right to raise children and direct their upbringing
- The right to travel between states
- The right to vote (with some exceptions)
- Certain First Amendment rights (speech, religion, association)

> **Key Term: Fundamental Right**
> A liberty interest recognized by the Supreme Court as so important that government action substantially interfering with it is subject to strict scrutiny.

### Substantive Due Process vs. Equal Protection

Government action may violate substantive due process if it substantially impairs a fundamental right, regardless of who is affected. If the law creates a classification (e.g., treating groups differently), it may also raise an equal protection issue. The analysis depends on whether the law targets a fundamental right or a suspect class.

> **Key Term: Substantive Due Process**
> The constitutional doctrine that protects certain fundamental rights from government interference, even if the procedures used are fair.
>
> **Key Term: Equal Protection**
> The constitutional guarantee that similarly situated persons will be treated alike by the government, unless a sufficient justification exists for different treatment.

### Levels of Scrutiny

The standard of review depends on the right or classification involved:

- **Strict scrutiny**: Applied to laws affecting fundamental rights or involving suspect classifications (race, national origin, certain aspects of alienage). The government must prove the law is necessary to achieve a compelling interest.
- **Intermediate scrutiny**: Applied to quasi-suspect classifications (gender, legitimacy). The government must show the law is substantially related to an important interest.
- **Rational basis**: Applied to all other rights and classifications. The challenger must show the law is not rationally related to a legitimate government interest.

> **Key Term: Strict Scrutiny**
> The highest standard of judicial review, requiring the government to prove a law is necessary to achieve a compelling interest.
>
> **Key Term: Intermediate Scrutiny**
> A standard of review requiring the government to show a law is substantially related to an important interest.
>
> **Key Term: Rational Basis**
> The lowest standard of review, requiring only that a law be rationally related to a legitimate government interest.

### Burden of Proof

If strict or intermediate scrutiny applies, the government bears the burden of proof. For rational basis review, the challenger must show the law is irrational.

### Procedural vs. Substantive Due Process

Procedural due process concerns the fairness of procedures when the government deprives someone of life, liberty, or property. Substantive due process asks whether the government may deprive someone of a fundamental right at all, regardless of procedure.

### **Worked Example 1.1**

A state enacts a law banning all persons under 21 from marrying. Is this law likely constitutional?

> **Answer:** No. The right to marry is fundamental. The law must satisfy strict scrutiny. The state must show the law is necessary to achieve a compelling interest. An age-based ban on all marriages under 21 is unlikely to meet this standard.

### **Worked Example 1.2**

A city passes an ordinance requiring all residents to obtain government approval before moving to another state. What level of scrutiny applies?

> **Answer:** Strict scrutiny. The right to interstate travel is fundamental. The city must prove the ordinance is necessary to achieve a compelling interest, which is highly unlikely.

### **Worked Example 1.3**

A state law provides that only men may serve as public school principals. What standard of review applies?

> **Answer:** Intermediate scrutiny. Gender is a quasi-suspect classification. The state must show the law is substantially related to an important interest.

### **Exam Warning**

> Laws that merely have a disparate impact on a group (e.g., affect more women than men) do not trigger heightened scrutiny unless there is evidence of discriminatory intent.

### **Revision Tip**

> Always ask: Is there a classification? Is a fundamental right involved? Apply the correct level of scrutiny and identify who bears the burden of proof.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Fundamental rights include marriage, procreation, child‑rearing, travel, voting, and certain First Amendment rights.
- Substantive due process protects fundamental rights from substantial government interference.
- Equal protection prohibits unjustified government classifications.
- Strict scrutiny applies to laws affecting fundamental rights or suspect classes; government bears the burden.
- Intermediate scrutiny applies to gender and legitimacy classifications.
- Rational basis applies to all other rights and classifications; challenger bears the burden.
- Disparate impact alone does not trigger heightened scrutiny without intent to discriminate.
- Procedural due process concerns fair procedures; substantive due process concerns the legitimacy of government action itself.

## **Key Terms and Concepts**

- Fundamental Right
- Substantive Due Process
- Equal Protection
- Strict Scrutiny
- Intermediate Scrutiny
- Rational Basis

Individual rights - Fundamental rights