The Nature of Constitutional Rights
The Invention and Logic of Strict Judicial Scrutiny

Explains constitutional rights, how courts must identify them, and why their protections are more limited than most people think.

Richard H. Fallon Jr. (Author)

9781108483261, Cambridge University Press

Hardback, published 14 March 2019

220 pages
23.5 x 15.6 x 1.6 cm, 0.44 kg

'The US Constitution protects freedom of speech, equal protection of the laws, and various other rights without specifying the circumstances under which government may lawfully infringe them. In this theoretically sophisticated and engaging book, Professor Fallon, Jr explores how and why the strict scrutiny test emerged to fill that gap and, in the process, shaped American understandings of judicial review and constitutional rights themselves.' Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.

1. The historical emergence of strict judicial scrutiny
2. Strict scrutiny as an incompletely theorized agreement
3. Rights and interests
4. Tests besides strict scrutiny and the nature of the rights that they protect
5. Legislative intent and deliberative rights
6. Rights, remedies, and justiciability
7. The core of an uneasy case for judicial review.

Subject Areas: Constitutional & administrative law [LND], Constitution: government & the state [JPHC], Politics & government [JP]