Heterogeneity of Rights

Abstract

If there is a constitutional right to R, and a law L by its terms prohibits R, L cannot be validly applied to some person P’s exercise of R. For at least two reasons, however, most cases involving claims of constitutional right are substantially more difficult than this schematic example. First, lawmakers rarely act so brashly as to proscribe rights in so many words. Second, even facially invalid laws typically include within their sweep much unprotected activity.

These two complications give rise to two familiar doctrinal questions. The first is the problem of incidental burdens. When, if ever, does the Constitution bar the application of a generally valid law because in the particular circumstances the law infringes an individual right? The second complication gives rise to the doctrinal issue of facial challenges. If P’s conduct C violates some rights-violating law L, but C is not constitutionally privileged (and therefore could be proscribed under a different, valid law), does P have a valid defense to a prosecution under L, or would that be an impermissible effort by P to raise the rights of third parties?

Keywords: incidental burdens, individual right, facial challenges, constitutional rights