Fundamental Rights

Travel

Saenz v. Roe

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.”

Voting

Harper v. Virginia State Bd. of Elecs.

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.

The Voter ID Case (Crawford v. Marion County Elec. Bd)

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.”

Contraception and Abortion

Skinner v. Oklahoma

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...

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