The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny, Richard H. Fallon, Jr.
Richard H. Fallon Jr. has produced a major work. His ambition in The Nature of Constitutional Rights is nothing less than to get us to reconsider the way we think about “rights” as core a concept in constitutional thought. Fallon starts with an observation in American constitutionalism that all rights are not equal. Some rights are described as “fundamental.” It is around these rights that courts throw the Constitution’s protections to the greatest degree by applying “strict scrutiny,” the requirement that certain actions by the government can only be justified if they serve “compelling interests” and are “narrowly tailored” to achieve their end.
Fallon notes that strict scrutiny is a modern creation, identifying its first clear expression as an element of a majority holding in a startling location: Justice Harry Blackmun’s opinion in Roe v. Wade. Thereafter, the simple binary construct of rational basis/strict scrutiny gave way to a graded spectrum of possibilities: intermediate scrutiny, rational basis plus scrutiny, and a “sliding scale” treatment of strict scrutiny that varied in different situations (pp. 37–39), Fallon asks, what happened to our understanding of “rights&rdq
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