Fundamentally Wrong About Fundamental Rights

Abstract

This short essay argues that the traditional and often repeated notion that laws burdening fundamental rights receive strict scrutiny is wrong. Many fundamental rights are not protected by strict scrutiny but by lesser standards or by categorical rules. Even rights, such as speech, free exercise of religion, and privacy, which do trigger strict scrutiny only do so occasionally; in many speech, religion, and privacy cases, the courts require the government to meet far less burdensome standards. In short, fundamental rights are governed by strict scrutiny only some of the time.

Keywords: fundamental rights, strict scrutiny