Fundamental Rights - Constitutional Analysis

In Saenz, the Court, for essentially the first time in American history, used the privileges or immunities clause of the Fourteenth Amendment to invalidate a state law. The case involved a California law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their first year of residence. Stevens, J., writing for the Court, emphasized that the right to travel is a fundamental right, and explained that one aspect of this is the right of new residents to be treated the same as longer term residents of a state. Further, although the Court recognized that the denial of benefits was not likely to substantially deter travel, “since the right to travel embraces the citizen’s right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty.” ( #expressive_harm ).

Tribe had this to say: “Saenz revealed a Court far more comfortable protecting rights that it can describe in architectural terms, especially in terms of federalism, than it is protecting rights that present themselves as spheres of personal autonomy or dimensions of constitutionally mandated equality.” Further: “States are able to serve as centers of democratic choice because, at least in theory, people choose their states of residences rather than the other way around. People vote with their feet on a lasting basis in deciding which state to call home, and they vote with their feet in a less permanent way in deciding where to take a holiday, where to seek employment, where to attend college, and so forth. If people did not have these choices but were essentially stuck in the state in which they were born and whatever states would have them, the “love it or leave it” answer to people objecting to their state’s laws would be unavailable.”

In Harper, the Court held that Virginia’s $1.50 poll tax violated the Equal Protection Clause because the right to vote was a fundamental right. “The right to vote in state elections is nowhere expressly mentioned in the Constitution, but once the franchise is granted lines may not be drawn which violate equal protection.” The Court rejected Black, J’s dissenting opinion, which pointed out that property qualifications for voting had a long historical pedigree in the United States, pointing out that “notions of what constitutes equal treatment for the purposes of the Equal Protection Clause do change” and that the Court should not be confined to historic notions of equality.

Tribe notes that the 24th Amendment suggests a negative pregnant for the Equal Protection Clause. But the enactment of the 24th Amendment can also be thought to redefine the “privileges or immunities” of United States citizenship that citizens are entitled to equality in enjoyment, suggesting that incorporation of the standards against the states might be appropriate upon a judicial finding that the right was deemed fundamental.

In The Voter ID Case, the Court rejected a facial challenge to an Indiana law requiring each voter to present government-issued photo identification as a condition of voting. Stevens, J., writing for the plurality, wrote that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious and may be upheld based on relevant and legitimate sate interests sufficiently weighty to justify the limitation.” The plurality concluded that the interests asserted by Indiana – including prevention of vote fraud and safeguarding voter confidence – were both neutral and sufficiently strong to require a rejection of the facial attack. However, Stevens left open the possibility that otherwise qualified voters might be able to establish on an individual basis that they faced such severe difficulties in obtaining government issued photo identification that the statute would be unconstitutional as applied to them.” The plurality made no mention of the likelihood that the rule would have a disparate impact. Scalia, J., concurring in the judgment, explicitly rejected the notion that a voter complaining about discriminatory impact could bring an equal protection challenge: “A generally applicable law with disparate impact is not unconstitutional,” absent proof of discriminatory intent. Souter, J., dissented, and argued that the Court should have applied heightened scrutiny: “A state may not burden the right to vote merely by invoking abstract interests, but must make a particular, factual showing. The State has made no justification here. Without a shred of evidence that in-person voter fraud is a problem in the State, Indiana has adopted one of the most restrictive photo identification requirements in the country.”

In Skinner, the Court declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act, which allowed state courts to order the sterilization of those convicted two or more times of crimes involving ”moral turpitude.” Expressly exempted were embezzlement, political offenses, and revenue act violations. Thus, one convicted three times of larceny could be subject to sterilization, but one convicted three times for embezzlement - a crime of the same essential nature - could not. Douglas, J., writing for the majority, concluded that the law violated equal protection. In so holding, he also emphasized that the Court was dealing with “legislation which involves one of the basic civil rights of man,” and that “marriage and procreation are fundamental to the very existence and survival of the race.” The majority further concluded that government imposed involuntary sterilization must be met with strict scrutiny.

Stone, C.J., concurred in the result, but felt that the law violated procedural due process. “A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process.”

In Griswold, the Court declared unconstitutional a state law that prohibited the use and distribution of contraceptives. Douglas, J., writing for the majority, found that the right to privacy was a fundamental right, but attempted to found this right in the penumbras of the First, Third, Fourth, and Fifth Amendments, rather than in the due process clause. Notably, the Court found that the Connecticut statue infringed on the privacy of a marital couple in their bedroom; but did not focus on a substantive right to procreative autonomy.

Goldberg, J., delivered a concurring opinion emphasizing the Ninth Amendment as authority for the Court to protect non-textual rights such as privacy. He wrote: “To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because the right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and give it no effect whatsoever.” Further, he noted that if mere rational basis review were applied to decisions affecting reproductive choice, “a law requiring compulsory birth control would also seem to be valid.”

Harlan, J., concurred in the judgment and argued that the right to privacy should be protected under the liberty clause of the due process clause. Harlan recognized the need for caution when invalidating legislation under the substantive due process, but was skeptical that Douglas’s approach would provide more restraint: “Judicial self-restraint will be achieved … only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” Due process “represent[s] the balance which our Nation … has struck between … liberty and the demands of organized society.” “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution” but is a “rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

In Eisenstadt, the Court overturned a conviction for violating a law making it a felony to distribute contraceptive materials except in the case of registered physicians and pharmacists furnishing the materials to married persons. The Court held that the statute violated the equal protection clause, because “whatever the rights of the individual to access contraceptives may be, the rights must be same for the unmarried and the married alike.” Relying on Griswold, the Court wrote that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a persons as the decision whether to bear or beget a child.”

In Roe, the Court held that the Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability. The Court reasoned that: “The right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” It held that strict scrutiny was to be used in evaluating state laws that burden the...