Fundamentally Unsound

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Posted: Jul 16, 2009 7:15 PM

Guest blog post by Ilya Shapiro.

One of the themes running through the confirmation hearings is whether the right to X, Y, or Z is “fundamental”—in a “legal” sense, as Sotomayor keeps reminding us.  This somewhat arcane theme is important because in the 1938 case of Carolene Products, in what has become the most famous footnote in legal history, the Supreme Court bifurcated our rights.  Certain political and civil rights were judged to be “fundamental,” while others, such as property rights and economic liberties, were something less.  The significance of a right being “fundamental” under this modern doctrine—which the Court created out of whole cloth—is twofold: 1) only “fundamental” rights are to be “incorporated” under the Fourteenth Amendment’s due process clause, and so can be invoked to challenge state laws and regulations; and 2) courts review state actions infringing “fundamental” rights with “strict scrutiny”—which is essentially a guaranteed striking of the law or regulation in question—while actions implicating lesser rights need only have a “rational basis” to survive.

Thus, if the Second Amendment’s right to keep and bear arms is not “fundamental,” last year’s historic Heller decision is only relevant to the District of Columbia and other federal enclaves, and not to the overwhelming majority of Americans who, of course, live in states.  Sotomayor’s Second Circuit panel completely ignored this issue in the Maloney case.  And, as detailed by Georgetown law professor (and Cato senior fellow) Randy Barnett here, Sotomayor’s testimony misstates the “fundamental rights” doctrine. 

Now, the whole idea of bifurcated rights is antithetical to our constitutional system—and makes little legal sense—so Sotomayor could have just outlined her own view of constitutional rights at some point, of how the Constitution protects individual liberty.  But of course, as we’ve seen again and again during these hearings, and as I’ve written in this space, the nominee either doesn’t have an overarching theory of constitutional interpretation or she’s playing coy to avoid giving politically damaging answers.

Ilya Shapiro is a Senior Fellow in Constitutional Studies at the CATO Institute and Editor-in-Chief of the CATO Supreme Court Review