What in the F**K is a Fundamental Right? Forum

[annapavlova]

Or rather, what would a comprehensive rule statement be if the subject of identifying fundamental right (FR) came up?

Obviously, anything within the Constitution is a fundamental right. But implied FR - like "right to privacy" - are defined as FRs because...they...? I don't want to just say "X is an FR, and Y is an FR, but Z is not a FR." I want to be able to articulate what MAKES X and Y an FR.

I don't know if I've just killed too many brain cells with these 12 hour study days but I can't come up with a basic definition when doing practice tests. Even Chem seems to dance around really defining it (which is starting to make me wonder if it's just...indefinable at this point.)

I'm getting that Scalia would qualify something as a FR if it has traditionally been considered an FR. Obviously, the court isn't ruling that way lately...sooo, how would I go about saying "The liberty interest is a fundamental right IF..."

Sigh. Thanks ahead of time.

[eth3n]

12 hour study days

rofl

comprehensive rule statement

maybe im retarded but unless your con law prof uses something that has already been decided (this seems to be a minority approach to writing a conlaw test), you are going to have to argue why something warrants a fundamental right/strict scrutiny standard rather then simply have a formula to look to...why would anyone make a conlaw test if it wasnt a mindfuck?

[annapavlova]

12 hour study days

rofl

comprehensive rule statement

maybe im retarded but unless your con law prof uses something that has already been decided (this seems to be a minority approach to writing a conlaw test), you are going to have to argue why something warrants a fundamental right/strict scrutiny standard rather then simply have a formula to look to...why would anyone make a conlaw test if it wasnt a mindfuck?

Not as retarded as me.

I guess I'm concerned that if I don't sort of define what a fundamental right should be, how could I argue that something IS one and therefore deserves that standard?

Seriously, fuck con law.

[Antipodean]

There is no agreement on the correct definition of a "fundamental right". Hell, there is no agreement on the correct way to define a fundamental right.

If you want, you can go with Scalia's definition as what's "deeply rooted in tradition", "implicit in the concept of ordered liberty", "defined at the most specific level", but you need to keep in mind that even he doesn't obey his own definition when it doesn't suit his purposes. (I'm looking at you, Cruzan).

[270910]

[Aeroplane]

The way it was taught in our class: A fundamental right is one that has been historically considered one, BUT the more liberal members of the court are willing to be more abstract than Scalia about this.
Example - Lawrence: Scalia saw the issue narrowly as one of same-sex sex and therefore not a right historically considered fundamental. The liberal wing saw the issue as one of formation of intimate family relationships, which historically HAS been treated as a fundamental right.
Limit: the right must be stated "with specificity" (WA v. Glucksberg) so you can't abstract your way all the way up to just "liberty". But there's a lot of leeway in between.
Note: you can specify (de-abstract?) any fundamental right into not being fundamental. For example: there's no fundamental historical right to post a youtube video without being arrested. But we obviously recognize that as falling under the more abstract umbrella of free speech. Etc.

[badfish]

Something about penumbras.

Sorry, I know that wasn't helpful but I couldn't help myself.

[sumus romani]

I've done a lot of reading and research on so-called "rights" in political philosophy. For what it is worth, I've found that you are lucky in philosophy even to get a serious attempt at definition of 'right' of any sort, much less a clear, helpful definition. Good luck in your quest.

[imchuckbass58]

Well, this is basically the huge controversy in fundamental rights analysis. Applying strict scrutiny is easy. The hard part is 1) finding out if a fundmanental right exists, and 2) articulating what it is.

Some definitions of fundamental rights that have been offered:

-Values that are implicit in the concept of ordered liberty (Palko)
-Rights that are so fundamental that restricting them would run against the principles of liberty and justice that underly our civil and political institutions (Goldberg in Griswold)
-Look to the traditions and collective conscience of our people to see if the right is so rooted so as to be ranked as fundamental (Goldber in Griswold)
-Rights that this country has historically and traditionally protected (Scalia in Bowers and Michael H)

These may seem very vague, but the overriding theme is that the first two formulations are more willing to recognize new rights as social change occurs and has much more of a resort to "natural rights" theory. The latter two formulations are more grounded in history and tradition. That is, if there is no tradition of protecting the right in the past, it doesn't exist, no matter how unfair that might seem. In general, liberals take the former approach, whereas conservatives take the latter.

It also depends how you frame the right. Some rights are fundamental when framed broadly (generally a liberal tactic) while not being fundamental when framed narrowly (conservative tactic).

This is largely the argument going on in Bowers, Lawrence and to a lesser degree Roe. If you define the right in Lawrence as "the right to engage in homosexual sodomy" then of course it hasn't been traditionally protected. But if you define it as "the right to be free of government interference into private, consensual sexual conduct" of course it is.

The point is, there is no test. Basically, what you do is play it out under both approaches and all the possible framings, and then argue which you find most compelling.

[Inter Alia]

Seriously, fuck con law.

+1

[macattaq]

I haven't taken conlaw yet, but could you define a fundamental right as one that's taken for granted by the majority of the populace?

[Renzo]

Something about penumbras.

Sorry, I know that wasn't helpful but I couldn't help myself.

No, seriously, literally laughed out loud.

[Blindmelon]

I haven't taken conlaw yet, but could you define a fundamental right as one that's taken for granted by the majority of the populace?

You mean fundamental right or liberty? Theres a big difference.

If its the latter, its pretty much what the court feels like they should protect for whatever reason they decide.

Under the 14th Substantive Due process jurisprudence, some cases focus on historical/legal traditions of protection, while others focus on historical/legal traditions that don't regulate. Its contradictory, but its pretty necessary though.

Basically, come up with whatever crazy argument you want that its protected for whatever reason - either the gov. traditionally stayed away or it didn't.

Then, on the other side argue that the fundamental right is really narrower than captured, like the liberty to penetrate X orifice rather than the liberty to express one's sexuality freely.

[Jim_Stansel]

Substantive due process is a big clusterfuck, it's pretty clear every justice just does a "results-oriented" analysis (as it happens I got that feeling a lot in other areas of con law too). Like other people have pointed out, you can always fiddle around with the level of generality, or how much emphasis you put on tradition versus modern consensus. Can't really say one side is objectively wrong. Just have to make arguments and be as persuasive as you can.

[annapavlova]

Yay - love you all. That will be fine, thanks.

I will try the functionalist/framing analysis and keep fingers crossed.

Also it appears my con law prof thinks we learned Palko (though we did not) which means it is fair game. Looks like I ought to read it.

[paratactical]

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[TTT-LS]

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[solidsnake]

There is no agreement on the correct definition of a "fundamental right". Hell, there is no agreement on the correct way to define a fundamental right.

Perhaps. But IIRC, the Court and some scholars have occasionally used the "deeply rooted" definition given in Corfield v. Coryell (i.e., fundamental rights are those rights that are "deeply rooted in the nation's history & traditions").

In Corfield, Justice Washington was referring discerning natural rights (not fundamental rights per se) with respect to states being unable to burden those natural rights of an out of stater under the Art. IV Privileges and Immunities Clause. This liberty jurisprudence was before Toomer (and well before ratification of 14A, for that matter) when the court switched from trying to be able to discern natural rights to a 'states can pick natural rights, but once they do, they can't discriminate against those natural rights on the grounds that a person is an out of stater' equality jurisprudence. Today, with Baldwin, the court has moved from protecting natural rights altogether to "national" rights when it comes to protection from discrimination under Art. IV Privileges and Immunities.

As for fundamental rights, I believe that Justice Harlan in his concurring opinion in Griswold was relying in substantial part on the reasoning in Corfield, when he began the "ordered liberty" jurisprudence that, along with incorporation of the Bill of Rights, all current nine justices currently believe is protected by sub due process of the 14A. The ordered liberty modern due process jurisprudence was followed in Roe, Casey, Lawrence v. Texas line of cases. Each justice, however, differs on the scope of ordered liberty. Scalia, for instance, argues that only if a tradition was univocal across time and geography is it within the living tradition that strikes the balance of ordered liberty. Contrast this with the vested rights (positive rights given to citizens by statute or common law) jurisprudence that the Lochner era court believed 14A due process protected.

[BobSacamano]

Go with Glucksberg, rights deeply rooted in the nation's history and traditions, make something up to shoehorn your right into the nation's history and traditions, strict scrutiny, BOOM, DONE.

I have my con law final in a couple days and I haven't the slightest clue how to study.

[vanwinkle]

If it makes you feel better, I took my Con Law final today, I argued that something is a fundamental right in order to answer a question, and I still don't understand what one really is.

The trick is just making it sound like you know. That's what the Court does.

[Journeybound]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

[jetlagz28]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

Undue burden test applies only to abortions.

[BobSacamano]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

edit: heh, nevermind, just checked my notes, I'm wrong.

[Inter Alia]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

Undue burden test applies only to abortions.

I'm glad I'm not the only confused one... this might help:

http://www.top-law-schools.com/forums/v ... 3&t=116638

[solidsnake]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

They don't really use "undue burdens" instead of strict scrutiny, they use the undue burdens test in analyzing whether the right has actually been infringed. If the law poses an undue burden on abortion, then it is subjected to strict scrutiny.

I think.

No thats wrong. If a state law imposes an undue burden on a woman's fundamental right to get an abortion pre-viability, it is unconstitutional under 14A. If a fed law does the same, it is unconstitutional through reverse incorporation of sub due process into 5A. The undue burden test replaces strict scrutiny only for abortions. As to whether a regulation is an "undue burden" is pretty subjective, just make args on both sides and look at what has been called an undue burden and what hasn't (e.g., provisions of Casey, Gonzales v. Carhart, etc.) and analogize/distinguish. Law exams aren't that deep as long as you have a technical mastery of the material.