Ch2. Fundamental Rights — Nature, Holders & Limitations

The Legal Character of Constitutional Rights

Dual Nature of Constitutional Rights:
① Individual subjective right: each person holds enforceable
   constitutional rights against the government
② Objective legal order: the Bill of Rights establishes a
   system of values that shapes all governmental action
   and guides interpretation of all law

Classification of rights:
- Negative (liberty) rights: freedom from government interference
  (1st, 2nd, 4th, 5th Amendment rights, etc.)
- Positive / procedural rights: entitlements to government process
  (due process, right to counsel, jury trial)
- Participation rights: rights to engage in the democratic process
  (voting, petition, association)
- Social / economic rights: addressed primarily through statute
  (Social Security, Medicare) rather than the Constitution

Who Holds Constitutional Rights?

US Citizens:
Full protection under all constitutional provisions.

Non-Citizens (Aliens):
Entitled to most constitutional protections once present
in the United States (due process, equal protection, 4th Amendment).
Limited exclusions:
→ No right to vote in federal or state elections
→ No right to hold most federal offices
→ Congress may discriminate against aliens in some federal
  programs (Mathews v. Diaz)
→ Undocumented persons retain core procedural rights

Corporations and Other Entities:
Entitled to constitutional protections consistent with their nature:
→ Yes: Equal Protection, Due Process, 4th Amendment (some),
     1st Amendment speech (Citizens United), Contract Clause
→ No: 5th Amendment privilege against self-incrimination,
     personal liberty rights

Requirements for Limiting Constitutional Rights

Due Process Clauses (5th & 14th Amendments)

Text (14th Amendment § 1):
"No State shall ... deprive any person of life, liberty, or
property, without due process of law."

Types of due process:
Procedural due process:
  → Government must provide fair notice and a hearing before
    depriving an individual of life, liberty, or property
  → Mathews v. Eldridge balancing: private interest +
    risk of error + governmental interest

Substantive due process:
  → Even with perfect procedures, the law itself must not be
    arbitrary or infringe on fundamental rights
  → Applies with special force to unenumerated fundamental rights
    (privacy, marriage, family, bodily integrity)

Tiers of Judicial Scrutiny

Rational Basis Review (lowest tier):
  → Applies to economic regulation, social welfare laws
  → Law upheld if rationally related to a legitimate
    government interest
  → Very deferential to the legislature

Intermediate Scrutiny:
  → Applies to gender-based classifications and some others
  → Law must be substantially related to an important
    governmental interest

Strict Scrutiny (highest tier):
  → Applies to suspect classifications (race, national origin,
    religion) and fundamental rights (speech, voting, privacy)
  → Law must be narrowly tailored to achieve a compelling
    governmental interest
  → Presumptively unconstitutional; government bears the burden

All three satisfied → law upheld
Failure at any tier → unconstitutional

Permissible Forms of Rights Limitation

General Due Process / Rational Basis:
  → Ordinary economic and social regulation

Heightened Emergency Powers:
  → During national emergencies, some rights may be
    temporarily restricted by executive order
  → Subject to post-emergency judicial review
    (Youngstown Sheet & Tube v. Sawyer)

Absolute Prohibitions:
  → Certain constitutional guarantees may not be
    suspended under any circumstances
  → e.g., prohibition on ex post facto laws, bills of attainder,
    and (after Roper v. Simmons) execution of juveniles

The State-Action Doctrine (Horizontal Effect)

Direct Government Constraint

The Constitution's primary function:
Protects individuals from government (state or federal) action.
All branches and agencies of government are bound by the
Constitution at all times.

Private Parties — The State-Action Doctrine

Issue: Does the Constitution apply to conduct by private actors?

Rule: The Constitution generally does NOT apply to purely
      private conduct — there must be state action.

Exceptions (state action found in private conduct):
① Public-function exception: private entity performs a
   function traditionally exclusive to government
   (e.g., company town — Marsh v. Alabama)
② Entanglement / nexus: government has sufficiently
   encouraged, authorized, or entangled itself in the
   private conduct (Shelley v. Kraemer — judicial enforcement
   of racially restrictive covenants = state action)

Practical result:
Private discrimination is addressed primarily through federal
statutes (Civil Rights Act of 1964, ADA, Fair Housing Act),
not directly through the Constitution.
Courts apply constitutional values indirectly through
interpretation of statutory general clauses.

Four Requirements to Limit a Fundamental Right ★★★★★ : Legitimate purpose · Means rationally (or narrowly) related to that purpose · Least restrictive means (under strict scrutiny) · Proportionality. Memory hook: purpose + means + necessity + proportionality

Non-Citizens’ Constitutional Rights ★★★★★ : Persons (not just citizens) are protected by due process and equal protection. Voting rights and political office are limited to citizens. Memory hook: “person” = broad; “citizen” = narrow

State-Action Doctrine ★★★★☆ : The Constitution binds government, not purely private parties. Private actors must be performing a public function or be sufficiently entangled with the state to trigger constitutional scrutiny. Memory hook: Constitution = government action only (with narrow exceptions)

Practice Questions

Q. Which constitutional rights are unavailable to corporations?

Corporations cannot invoke the 5th Amendment privilege against self-incrimination (personal to natural persons), and they generally cannot assert personal liberty rights such as the right to marry or bodily integrity claims. However, corporations do have 1st Amendment speech rights, 4th Amendment protection against unreasonable searches, and 14th Amendment due process and equal protection rights.

Q. What does it mean for a constitutional right to be violated by a law’s substance rather than its procedure?

Substantive due process holds that even a procedurally perfect law is unconstitutional if it infringes a fundamental right without sufficient justification, or if it is arbitrary and bears no rational relation to a legitimate governmental interest. For example, a law that perfectly described its procedures but retroactively criminalized lawful past conduct would violate substantive due process regardless of the procedures provided.