Fundamentally Wrong About Fundamental Rights

Constitutional Commentary, 2006

UCLA School of Law Research Paper No. 06-26

12 Pages Posted: 17 May 2006

See all articles by Adam Winkler

Adam Winkler

University of California, Los Angeles (UCLA) - School of Law


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

Suggested Citation

Winkler, Adam, Fundamentally Wrong About Fundamental Rights. Constitutional Commentary, 2006, UCLA School of Law Research Paper No. 06-26, Available at SSRN:

Adam Winkler (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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