Fundamental rights: medical treatment, abortion, voting, campaign spending, association, travel, and the right to bear arms

Black-letter propositions

1. 01

   A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment, which is balanced against state interests, and a state may require clear and convincing evidence of an incompetent person's wishes before life-sustaining treatment is withdrawn.

2. 02

   Substantive due process protects fundamental rights and liberties that are, objectively, deeply rooted in the nation's history and tradition, and it requires a careful description of the asserted right, so a claimed right to assistance in committing suicide is not protected.

3. 03

   The Constitution does not confer a right to abortion, and the authority to regulate abortion is returned to the people and their elected representatives, so a state law regulating abortion is reviewed under rational basis.

4. 04

   A state may not condition the right to vote on payment of a fee or tax, and classifications that impinge on the franchise are closely scrutinized.

5. 05

   The Equal Protection Clause requires that seats in both houses of a state legislature be apportioned substantially on a population basis, because legislators represent people and not areas.

6. 06

   Even-handed voter-identification requirements that protect the integrity and reliability of the electoral process are permitted, and a law's burden on voters must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.

7. 07

   Contribution limits are constitutional because they guard against actual or apparent corruption, but the government may not suppress independent political expenditures by corporations on the basis of the speaker's corporate identity.

8. 08

   Forcing a group to accept a member it does not want violates its First Amendment right of expressive association if the person's presence significantly affects the group's ability to advocate its views, though the right can be overridden by regulations that serve compelling state interests unrelated to the suppression of ideas and cannot be achieved by less restrictive means.

9. 09

   The right to travel includes the right to be treated like other citizens of a new state, so a state may not pay newly arrived residents lower welfare benefits than longer-term residents, absent a compelling governmental interest.

10. 10

    The Second Amendment protects an individual right to keep and bear arms, and when its plain text covers conduct the government must show that a firearm regulation is consistent with the nation's historical tradition, though a person found by a court to pose a credible threat of physical harm to another may be temporarily disarmed.

Use this attack sequence under time

Common wrong turns

• A poll tax is invalid even though the state has an interest in the fee.
• A district drawn with unequal populations violates equal protection because votes are diluted.
• There is no constitutional right to abortion, so rational basis review applies to abortion regulations.
• The Second Amendment right is not unlimited, and courts look to historical tradition of regulation.

Worked example

A state requires anyone who wants to vote to pay a poll tax of $1.50, and it refuses to allow those who cannot pay to vote. A resident who cannot pay sues under the Equal Protection Clause.

Practice this topic

Substantive due process

Cruzan v. Director, Missouri Department of Health held that a competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment, which is determined by balancing against relevant state interests, and that Missouri could require clear and convincing evidence of an incompetent person's wishes before withdrawing life-sustaining treatment.

Washington v. Glucksberg held that the Court's method of substantive due process analysis has two features, protecting fundamental rights and liberties that are objectively deeply rooted in the nation's history and tradition and requiring a careful description of the asserted interest, and held that a right to assistance in committing suicide is not a fundamental liberty interest. Dobbs v. Jackson Women's Health Organization held that the Constitution does not confer a right to abortion, overruled Roe and Casey, and returned the authority to regulate abortion to the people and their elected representatives.

Voting and money in politics

Harper v. Virginia State Board of Elections held that a state's conditioning of the right to vote on the payment of a fee or tax violates the Equal Protection Clause. Reynolds v. Sims held that the Equal Protection Clause requires the seats in both houses of a bicameral state legislature to be apportioned substantially on a population basis, because legislators represent people and not areas. Crawford v. Marion County Election Board upheld Indiana's photo-identification law against a facial challenge because the state's interests in deterring voter fraud and protecting the integrity of the electoral process justified the burden.

Buckley v. Valeo held that the contribution limits in the campaign finance act were constitutional but the expenditure limits violated the First Amendment. Citizens United v. FEC returned to the principle that the government may not suppress political speech on the basis of the speaker's corporate identity and overruled Austin, so limits on corporate independent expenditures are invalid.

Association, travel, and arms

Roberts v. United States Jaycees held that applying a state law to compel a large, nonselective organization to accept women as regular members did not violate the members' freedom of intimate or expressive association. Boy Scouts of America v. Dale held that applying a public accommodations law to require the Boy Scouts to readmit an adult leader violated the group's right of expressive association because the forced member's presence would significantly affect its ability to advocate its viewpoints.

Saenz v. Roe held that a California law limiting new residents' welfare benefits to the level of their former state violated the Fourteenth Amendment, because the right to travel includes the right of newly arrived citizens to be treated like other citizens of the state. District of Columbia v. Heller held that the Second Amendment protects an individual right to possess a firearm unconnected with militia service, New York State Rifle and Pistol Association v. Bruen required the government to show that a firearm regulation is consistent with the nation's historical tradition when the plain text covers the conduct, and United States v. Rahimi held that a person found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed.

Frequently asked questions