The Proper Role of Equality in Constitutional Adjudication
This Feature argues that constitutionally unenumerated yet nonetheless fundamental rights require judicial protection, but only from unequal infringements.
The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution.
At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided.
laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded
as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely.
This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights.
Author's summary: Equality in constitutional adjudication requires protection of unenumerated rights.
- Constitutionally unenumerated rights require judicial protection
- Laws infringing these rights should be invalidated if they burden only some in society
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