Incidental Burdens on Constitutional Rights

• Author: Michael C. Dorf
• Pages: 1350-1351

Page 1350

Government actions may interfere with individual rights in two principal ways. First, government may disadvantage a person because that person exercised a right. A law that by its terms prohibits the "burning of an American flag as a statement of political protest" is an example of a law directed at a right in this way. Second, the government may enforce a law that is not directed at an individual right but has the incidental effect of burdening a right in the particular case. The application of a law prohibiting "the lighting of a public fire," to an act of politically motivated flag burning is an example of such an incidental burden. The Supreme Court has held that most constitutional rights are protected against direct burdens but not against incidental ones. Thus, in the above examples, the law directed at flag burning would be unconstitutional, while the application of the fire prohibition to the flag burner would be constitutional, so long as the law was not being used as a pretext for punishing unpopular expression. Similarly, a law using race as an express criterion is presumptively unconstitutional, while a facially neutral law that has a disparate impact on a racial group will be upheld if it was adopted for a nondiscriminatory purpose.

From the perspective of an individual right-holder, there may be little difference between direct and incidental burdens on constitutional rights. In each case, some

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government policy infringes the right. However, to say that incidental burdens always raise the same constitutional concerns as targeted ones would open the floodgates of litigation, because every law can, under various circumstances, impose incidental burdens on rights. User fees for government services often have a disparate racial impact, and taxation of all CORPORATIONS increases the marginal cost of doing business for those corporations that run newspapers, thereby burdening FREEDOM OF THE PRESS. To avoid subjecting nearly all laws to searching constitutional scrutiny, the courts must either ignore incidental burdens entirely or find some way to identify some relatively small subset of incidental burdens that pose the gravest dangers. For the most part, the Court has chosen the former course. As a comparison of speech and religion cases illustrates, however, this strategy presents problems.

As a formal matter, in FREEDOM OF SPEECH cases, the Court treats some incidental burdens as...