Fundamental Interests

• Author: Kenneth L. Karst
• Pages: 1172-1173

Page 1172

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.

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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...