The idea that some interests are fundamental, and thus deserving of a greater measure of constitutional protection than is given to other interests, is an old one. Justice bushrod washington, sitting on circuit in corfield v. coryell (1823), held that the privileges and immunities clause of Article IV of the Constitution protected out-of-staters against discriminatory state legislation touching only those privileges that were "in their very nature, fundamental; which belong, of right, to the citizens of all free governments." Washington's list of such interests was limited but significant: free passage through a state; habeas corpus; the right to sue in state courts; the right to hold and dispose of property; freedom from discriminatory taxation.
Although the Corfield doctrine suggested an active role for the federal judiciary in protecting natural rights against state interference—at least on behalf of citizens of other states—the doctrine was not embraced by the full Supreme Court during Washington's lifetime. If some hoped that the fourteenth amendment's privileges and immunities clause would breathe new life into the fundamental rights theory, those hopes were disappointed in the slaughterhouse cases (1873). Rejecting the theory as propounded in two eloquent dissenting opinions, the Court again refused to find any special federal constitutional protection against state invasions of preferred rights.
Within a generation, however, the Court had identified a cluster of preferred rights of property and the freedom of contract, to be defended against various forms of economic regulation. The Court did not use the language of fundamental interests; for doctrinal support it avoided both privileges and immunities clauses, relying instead on a theory of substantive due process. When this doctrinal development played out in the late 1930s, the Court abandoned its strict scrutiny of business regulation in favor of a standard of review demanding no more than a rational basis for legislative judgments.
Even as the Court adopted its new permissive attitude toward economic regulation, it was laying the groundwork for another round of protections of preferred rights. (See united states v. carolene products co. ; skinner v. oklahoma.) When the warren court set about its expansion of the reach of equal protection doctrine, it not only followed these precedents but also revived the rhetoric of fundamental interests. A state law discriminating against the exercise of such an interest, the Court held, must be justified as necessary for achieving a compelling state interest.
The Warren Court hinted strongly that it would expand the list of fundamental interests demanding strict judicial scrutiny to include all manner of claims to equality. In fact, the Court's holdings placed only a limited number of interests in the "fundamental" category: voting rights and related interests in the electoral process; some limited rights of access to the courts; and rights relating to marriage, the family, and other intimate relationships. Even so modest a doctrinal development evoked the strong dissent of Justice john marshall harlan : "I know of nothing which entitles this Court to pick out particular human activities, characterize them as "fundamental,' and give them added protection under an unusually stringent equal protection test."
The burger court, making Harlan's lament its theme song, called a halt to the expansion of fundamental interests occasioning strict judicial scrutiny under the equal protection clause. However, in cases touching marriage and other close personal relationships, the Court continued to promote the notion of fundamental liberties deserving of special protection—now on a substantive due process theory. (See abortion and the constitution; illegitimacy; freedom of intimate association.) The notion of natural rights as part of our constitutional law is deeply ingrained. Our modern doctrines about fundamental rights are novel only in the particular interests they have termed fundamental.
Kenneth L. Karst
Tribe, Laurence H. 1978 American Constitutional Law. Chaps. 8, 11, 15, and 16. Mineola, N.Y.: Foundation Press. 000 002