PastPaperHero | Individual rights

Learning Outcomes

This article explains how fundamental rights operate in MBE-style constitutional law, including:

Pinpointing which interests the Court currently treats as fundamental rights for exam purposes, and which important-sounding interests receive only rational basis review
Distinguishing substantive due process, procedural due process, and equal protection as separate tools for challenging government action
Matching the correct level of scrutiny to laws affecting fundamental rights or using suspect and quasi-suspect classifications, and recognizing when “rational basis with bite” is likely tested
Allocating the burden of proof under strict scrutiny, intermediate scrutiny, and rational basis review, and predicting which side is likely to prevail on the bar exam
Analyzing fact patterns to decide whether to frame a claim as due process, equal protection, or a more specific First Amendment theory
Spotting and avoiding common traps involving abortion after Dobbs, economic and social legislation, durational residency requirements, and access‑to‑courts issues for indigent litigants
Using a stepwise checklist to work through state action, right or classification, scrutiny level, and tailoring, so you can move quickly and accurately through multiple-choice questions

MBE Syllabus

For the MBE, you are required to understand how the Constitution protects individual fundamental rights and how courts review government action affecting those rights, with a focus on the following syllabus points:

Recognition of rights classified as fundamental for constitutional law purposes
Distinction between substantive due process and procedural due process
Relationship between equal protection classifications and scrutiny levels
Application of strict scrutiny to laws burdening fundamental rights
Allocation of burdens of proof under strict, intermediate, and rational basis review
Interaction between fundamental rights and suspect or quasi-suspect classifications
Distinction between fundamental personal rights and nonfundamental economic or social interests

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is NOT considered a fundamental right for purposes of strict scrutiny?
1. Marriage
2. Voting
3. Freedom of contract in business
4. Parental control over child upbringing
A state law prohibits all persons under 21 from purchasing alcohol. Which level of scrutiny applies to this classification?
1. Strict scrutiny
2. Intermediate scrutiny
3. Rational basis review
4. Fundamental rights review
When government action substantially interferes with a fundamental right, who bears the burden of proof?
1. The challenger, to show the law is not rational
2. The government, to show the law is necessary to a compelling interest
3. The challenger, to show the law is not substantially related to an important interest
4. The government, to show the law is rationally related to a legitimate interest
A state statute allows only property owners to vote in local school board elections. The best constitutional framework for challenging this law is:
1. Procedural due process under the Fourteenth Amendment
2. Substantive due process only
3. Equal protection, triggering strict scrutiny
4. The Contracts Clause
A state requires new residents to live in the state for one year before qualifying for nonemergency public medical care. Which is most accurate?
1. The law affects no fundamental rights and gets rational basis review
2. The law burdens the right to travel and is subject to strict scrutiny
3. The law is valid if it is substantially related to an important interest
4. The law is automatically valid because states control public benefits

Introduction

Fundamental rights are individual liberties and interests that receive the highest level of constitutional protection. When government action restricts a fundamental right, courts usually apply strict scrutiny and strike down the law unless it is necessary to achieve a compelling government interest and is narrowly tailored.

For the MBE, you must be able to:

Recognize when a fundamental right is implicated
Choose the correct doctrinal route (substantive due process, equal protection, or sometimes the First Amendment)
Apply the correct level of scrutiny and assign the burden of proof
Distinguish fundamental personal rights from ordinary economic or social legislation

Key Term: State Action
Government conduct (federal, state, or local) or conduct fairly attributable to the government that is required before most constitutional rights claims can be brought. Purely private conduct generally is not subject to constitutional constraints, unless the private party is performing a traditional, exclusive public function or the government is significantly involved in the challenged conduct.

A threshold step on any MBE question is to confirm there is state action; without it, individual rights provisions such as due process and equal protection do not apply. Private landlords, private schools, and private employers generally are not state actors unless facts show a close nexus with government authority.

Most fundamental-rights questions arise under the Due Process Clauses (Fifth Amendment for the federal government; Fourteenth Amendment for states and localities) and the Equal Protection Clause (Fourteenth Amendment for states, incorporated into the Fifth Amendment for the federal government).

Identifying Fundamental Rights

Fundamental rights are those explicitly or implicitly protected by the Constitution and recognized by the Supreme Court as essential to liberty, autonomy, or democratic participation. Laws burdening these rights generally trigger strict scrutiny (unless a more specific doctrine, like the First Amendment, supplies the test).

The main fundamental rights tested on the MBE include:

Marriage (including same‑sex marriage)
Procreation
Contraception
Parental control over child upbringing and education
Family living arrangements (living with extended family)
Voting and ballot access (with exceptions for age, residency, and citizenship)
Interstate travel
Certain privacy interests (including intimate sexual conduct between consenting adults)
First Amendment freedoms (speech, religion, association, and related expressive rights)
Refusal of unwanted medical treatment (with limits)

Key Term: Fundamental Right
A right so important that government action substantially interfering with it is subject to strict scrutiny, meaning the government must show the law is narrowly tailored (or necessary) to achieve a compelling interest.

On exam questions, do not assume a right is fundamental simply because it is important. The following are not fundamental rights for MBE purposes:

Freedom of contract in business or employment
Ordinary economic liberties (e.g., practicing a profession, wage regulation, entry into trades)
Education (including public education)
Social welfare benefits (outside of limited access‑to‑courts situations)
Freedom from all retroactive civil legislation (absent a fundamental right or suspect classification)
Housing, food, or health care as such (though the government must not discriminate in distributing benefits on suspect bases)

These interests are protected, but they receive only rational basis review unless tied to some other fundamental right or suspect classification.

Mnemonic for Fundamental Privacy Rights

Many outlines summarise the core privacy‑related rights with a “CAMPERS” mnemonic. In MBE terms:

C – Contraception
A – (Pre‑Dobbs) Abortion framework
M – Marriage
P – Procreation
E – Private education of children
R – Living with extended family relations
S – Adult consensual sexual intimacy

You do not need to recite this mnemonic on the exam, but it can help you quickly recognize privacy‑type fundamental rights in fact patterns.

Privacy‑related Fundamental Rights

Many fundamental rights are described as components of “privacy” or “liberty.” Key examples:

Marriage: Adults have a fundamental right to marry, including interracial and same‑sex marriage. Restrictions that substantially interfere with the right to marry (beyond reasonable regulations like age limits or consanguinity rules) are subject to strict scrutiny.

Reasonable regulations such as minimum age requirements, prohibitions on bigamy, or bans on marrying close blood relatives are generally upheld if they do not significantly interfere with the ability of adults to marry. But broad bans on marriage for certain groups (e.g., people owing child support, inmates absent penological justification, same‑sex couples before Obergefell) are subject to heightened scrutiny.
Procreation: The state cannot impose involuntary sterilization of certain categories of offenders or groups without strict scrutiny. The right to decide whether to have children is fundamental.

Classic exam example: A statute authorizing mandatory sterilization of repeat thieves. This kind of law directly interferes with procreation and must satisfy strict scrutiny, which it almost certainly will not.
Contraception: Both married and unmarried individuals have a fundamental right to purchase and use contraceptives. Broad bans on contraceptive access are unconstitutional.

This covers not just the decision to use contraceptives within marriage but access by single adults and adolescents (subject to reasonable health regulations). A law restricting sale of nonprescription contraceptives to licensed pharmacists has been invalidated as an undue burden on this right.
Parental control and education: Parents have a fundamental right to direct the upbringing and education of their children, including the choice to send children to private or religious schools and to make key child‑rearing decisions, subject to reasonable regulation for child welfare.

This right supports, for example, the ability to:
- Choose private or religious schooling
- Provide religious instruction at home
- Make disciplinary and educational decisions (short of abuse or neglect)
However, the state retains power to:
- Require school attendance for a reasonable age range
- Set minimum standards for curricula and teacher qualifications
- Intervene to protect children from abuse or serious neglect
Family living arrangements: The Court has protected the right of extended families to live together in a single household. Zoning ordinances that unreasonably prevent close relatives from living together can violate this right.

By contrast, the Court has allowed zoning rules that limit unrelated individuals living together in single‑family zones. The protection focuses on family integrity, not on unrelated roommates.
Intimate sexual conduct: Consensual, noncommercial sexual intimacy between adults is constitutionally protected. Although the Court has sometimes described this under “liberty” rather than labeling it a “fundamental right,” in practice the government has no legitimate interest in criminalizing private adult consensual intimacy, including same‑sex intimacy.

The government may still regulate:
- Prostitution and commercial sex
- Sexual conduct involving minors
- Nonconsensual acts or public sex

Key Term: Privacy Right
A cluster of liberty interests—including marriage, procreation, contraception, child‑rearing, family living arrangements, adult consensual intimacy, and refusal of unwanted medical treatment—that receive heightened constitutional protection, typically under substantive due process.

Refusal of medical treatment: Competent adults have a constitutionally protected liberty interest in refusing unwanted medical care, including life‑sustaining treatment. However, the right is not absolute. The government may require clear and convincing evidence of a patient’s wishes before allowing withdrawal of life‑sustaining care for an incompetent person, and may regulate procedures for do‑not‑resuscitate orders, living wills, and surrogates.

There is no fundamental right to physician‑assisted suicide for MBE purposes; laws prohibiting assisted suicide are reviewed under rational basis and are generally upheld.

Abortion – Current Exam Status

Older outlines treat access to pre‑viability abortion as a fundamental privacy right subject to the “undue burden” test. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court held that the federal Constitution does not confer a right to abortion, and states may regulate or prohibit abortion subject only to rational basis review (and other constitutional constraints such as free speech or equal protection if implicated).

If an MBE question clearly uses the pre‑Dobbs framework (e.g., discusses “undue burdens” on pre‑viability abortions), treat it as testing that doctrine. But do not mechanically assume abortion is a fundamental right under current law.

Key Term: Undue Burden (Abortion Context)
The pre‑Dobbs standard under which a state could not impose a regulation that had the purpose or effect of placing a substantial obstacle in the path of a woman seeking a pre‑viability abortion. This test is no longer controlling federal constitutional law but may still appear in legacy materials.

Pre‑Dobbs exam‑style regulations (under the now‑superseded undue burden framework) included:

Usually permitted (no undue burden under Casey):
- Informed‑consent requirements, including truthful description of the procedure, risks, and gestational age
- 24‑hour waiting periods
- Parental consent or notification for minors if there is a judicial bypass procedure
- Limiting performance of abortions to licensed physicians
- Certain bans on specific late‑term procedures where alternative procedures remain available and exceptions protect the woman’s life
Typically invalid:
- Spousal notification or consent requirements
- Regulations that effectively close most clinics in a state without significant health benefits (e.g., admitting‑privileges requirements that sharply reduce access)

Under Dobbs, the key exam point is that federal substantive due process no longer recognizes abortion as a fundamental right. States remain free to protect abortion under their own constitutions or statutes, but that is not a federal constitutional issue.

The Right to Travel

The right to interstate travel has long been treated as fundamental. It includes:

The right to enter and leave states
The right to be treated equally as a new resident once bona fide residency is established
The right to move between states without unreasonable restrictions

Key Term: Right to Travel
A fundamental right allowing individuals to move freely between states and to be treated substantially equally once they become bona fide residents of a state. Laws burdening this right are usually subject to strict scrutiny.

Key Term: Durational Residency Requirement
A law conditioning a benefit (such as voting, welfare, or medical care) on living in the state for a specified period (e.g., 30 days, one year). Long durational residency requirements that disadvantage new residents often burden the right to travel and trigger strict scrutiny.

Commonly tested situations involve durational residency requirements for benefits. Laws that treat new residents worse than long‑term residents often trigger strict scrutiny, especially when:

The benefit is basic subsistence (full welfare or medical benefits)
The waiting period is lengthy (e.g., one year)
The classification explicitly distinguishes “new” from “old” residents

Examples of suspect burdens on travel:

One‑year residency requirements for full welfare benefits or state medical care
Long residency requirements for voting (beyond what is reasonably necessary to verify bona fide residency)

By contrast, brief residency requirements that serve administrative purposes (e.g., 30 days before voting) are more likely to be upheld as reasonable.

Durational residency rules can sometimes be challenged under multiple theories:

Equal Protection (new vs long‑term residents)
Privileges or Immunities of national citizenship (Fourteenth Amendment), particularly when newly arrived residents are denied the same basic rights as long‑time residents
Substantive due process, when the state directly burdens migration

On the MBE, the answer choice will usually label this as an equal protection or fundamental‑rights issue rather than a Privileges or Immunities problem.

The Right to Vote and Ballot Access

The right of citizens 18 or older to vote in federal, state, and local elections is fundamental. Restrictions on who can vote, or severe burdens on how people vote, usually trigger strict scrutiny.

Key Term: Right to Vote
A fundamental right of adult citizens to participate in federal, state, and local elections on an equal basis, subject to reasonable regulations. Laws that significantly burden this right are reviewed under strict scrutiny.

Key exam points:

Poll taxes and wealth‑based qualifications for voting are unconstitutional.
Literacy tests and race‑based exclusions are unconstitutional.
Reasonable, nondiscriminatory regulations of voter registration and identification may be upheld if they serve important interests (e.g., preventing fraud) and do not impose severe burdens.
Residency requirements for voting must be short and tied to verifying actual residence. Year‑long requirements are unconstitutional.

Key Term: One Person, One Vote
The principle that, in elections of representatives to legislative bodies, electoral districts must be drawn so that each district has approximately equal population, giving each person’s vote roughly equal weight.

The “one person, one vote” principle applies to:

U.S. House of Representatives districts
Both houses of a state legislature
Local governmental bodies that elect representatives by district (e.g., city councils, county commissions, school boards)

It does not apply to:

The U.S. Senate (because the Constitution itself specifies two senators per state)
Certain special‑purpose districts (e.g., water districts) where voting can be limited to those specially affected by the entity’s functions and may be weighted by interest (such as acreage owned)

Ballot access rules can also implicate fundamental rights. Examples:

Excessive filing fees for candidates, without alternative ways to qualify based on signatures, can unconstitutionally burden the rights of voters and candidates, especially poor candidates.
Signature requirements for placing initiatives or candidates on the ballot are generally valid if they are reasonable and nondiscriminatory and leave open realistic avenues for ballot access.

A critical point: regulation of the time, place, and manner of elections is not automatically problematic. Courts balance the character and magnitude of the burden on voting against the state’s interests. Minor burdens are usually permissible.

First Amendment Rights as Fundamental Rights

Freedom of speech, free exercise of religion, and freedom of association are also fundamental rights. However, when a law regulates speech or religion, courts typically apply the specific First Amendment doctrines (content‑based vs content‑neutral regulation, public forum analysis, Free Exercise and Establishment Clause tests) rather than generic due process or equal protection analysis.

On MBE questions, if speech or religion is clearly implicated, look for the First Amendment answer before turning to due process or equal protection, even though these rights are “fundamental” in a broad sense.

For example:

A law banning campaign leafleting in public parks is mainly a speech/public‑forum problem.
A law denying unemployment benefits to someone fired for refusing to work on their Sabbath is mainly a Free Exercise problem.

The fundamental‑rights framework is most useful when the problem involves personal autonomy (marriage, parenting, procreation, intimacy) or democratic process (voting, travel), not when the issue is classic speech or religion regulation.

Due Process: Substantive and Procedural

Government action can violate due process in two distinct ways.

Key Term: Substantive Due Process
The doctrine that protects certain fundamental rights—such as marriage, procreation, and interstate travel—from unjustified government interference, regardless of the procedures used, usually applying strict scrutiny.

Key Term: Procedural Due Process
The requirement that, before intentionally depriving a person of life, liberty, or property, the government must follow fair procedures—typically including notice and an opportunity to be heard before a neutral decisionmaker.

Substantive Due Process

Substantive due process asks whether the government’s substantive decision to interfere with life, liberty, or property is justified:

If a fundamental right is burdened, strict scrutiny applies.
If a nonfundamental interest (e.g., ordinary economic regulation, social welfare benefits, business licensing) is affected, rational basis review applies, and the law is usually upheld.

Key Term: Suspect Classification
A classification such as race or national origin (and some state alienage classifications) that is inherently suspicious and triggers strict scrutiny under equal protection.

Key Term: Quasi‑Suspect Classification
A classification such as gender or legitimacy (birth status) that triggers intermediate scrutiny under equal protection.

Substantive due process is the main doctrine used when a fundamental right is denied to everyone (e.g., a law banning all same‑sex marriage prior to Obergefell, or a law forbidding any parents from choosing private education). If the government action burdens a right that is not fundamental (e.g., the right to pursue a particular occupation, the right to receive a certain level of public benefits), the review is deferential.

Examples of substantive due process review:

Economic and social legislation (e.g., minimum wage laws, rent control, occupational licensing) – usually upheld under rational basis. Courts ask only whether the law is rationally related to a legitimate purpose, such as health, safety, or economic regulation. This area is sometimes called “economic substantive due process,” but modern courts rarely strike such laws down.
Retroactive civil legislation – upheld so long as it is rationally related to a legitimate governmental purpose. Retroactive tax laws, changes to statutes of limitations, and similar measures are rarely invalidated unless they are arbitrary.

Substantive due process also interacts with equal protection. For example:

A law restricting marriage to opposite‑sex couples denied a fundamental right (marriage) to a particular group (same‑sex couples). The Supreme Court in Obergefell relied on both due process and equal protection to strike down such bans.

Procedural Due Process

Procedural due process asks whether the government used fair procedures in depriving someone of life, liberty, or property.

Key preliminary questions:

Has there been a deprivation?
There must be intentional government action (or at least deliberate decisionmaking). Mere negligence by government employees generally does not amount to a due process violation.
Is life, liberty, or property at stake?
- Life: loss of life (capital punishment, deadly force).
- Liberty: includes not only freedom from physical restraint (incarceration, involuntary commitment) but also significant restrictions on freedom of action, and freedom to exercise fundamental rights.
- Property: not just real or personal property, but also certain entitlements, such as:
  - Public education where state law requires school attendance
  - Welfare benefits once statutory eligibility is established
  - Certain public jobs where rules or contracts provide that employees may be fired only “for cause”

If no life, liberty, or property interest is at stake, procedural due process is not triggered.

Once a protected interest is identified, the court applies a balancing test to determine what process is due.

Key Term: Mathews Balancing Test
A three‑factor test for procedural due process that weighs: (1) the importance of the individual interest; (2) the risk of erroneous deprivation and the value of additional safeguards; and (3) the government’s interest in efficiency and cost‑saving.

In practice, this means:

The more important the individual interest, the more process is required.
The more likely existing procedures are to produce errors, and the more helpful additional procedures would be, the more process is required.
Strong governmental interests in efficiency, security, or emergency response can justify less process or post‑deprivation hearings.

Typical exam applications:

Public education: A significant suspension (e.g., 10 days from public school) requires at least:
- Notice of the charges
- An opportunity to tell the student’s side of the story before a neutral decisionmaker
  A full trial‑type hearing is not required.
Welfare benefits: Termination requires a pre‑termination evidentiary hearing, including:
- Timely and adequate notice
- Opportunity to present evidence and confront adverse witnesses
- Decision based solely on the hearing record, by an impartial decisionmaker
Disability benefits: A full evidentiary hearing can come after termination, if there was prior notice and opportunity to submit written evidence.
Public employment:
- Employees who can be fired only “for cause” have a property interest in continued employment.
- They must receive some opportunity to be heard before discharge (notice of charges and a chance to respond), unless there is a significant reason not to retain them pending a hearing (e.g., a police officer indicted for a violent crime can be suspended first, with a prompt later hearing).
Indigent access to courts: Sometimes involves both procedural due process and equal protection. The government must waive filing fees when failure to do so would effectively deny a fundamental right, such as:
- Marriage or divorce (filing fee for divorce)
- Appeal from criminal conviction (transcript costs)
- Appeal from termination of parental rights

For nonfundamental matters (e.g., bankruptcy filings, some civil appeals), the government can condition access on payment of reasonable fees.

Equal Protection and Fundamental Rights

When a law creates a classification (e.g., by age, gender, race, property ownership, or residency) and that classification results in some people being denied a fundamental right that others enjoy, equal protection is implicated.

Key Term: Equal Protection Clause
The Fourteenth Amendment provision (applied to the federal government via the Fifth Amendment) prohibiting government from treating similarly situated persons differently without sufficient justification, with the level of scrutiny depending on the classification and the right affected.

Some key points:

If a classification:
- Uses a suspect class (race, national origin, some alienage); or
- Burdens a fundamental right (such as voting or interstate travel),
then strict scrutiny applies under equal protection.
If a classification uses a quasi‑suspect class (gender, legitimacy), intermediate scrutiny applies.
All other classifications receive rational basis review.

Examples involving fundamental rights:

A law allowing only property owners to vote discriminates among citizens in the exercise of a fundamental right, triggering strict scrutiny under equal protection.
A one‑year residency requirement for full welfare benefits discriminates against new residents and implicates the right to travel, again triggering strict scrutiny.
A law that allows only mothers, but not fathers, to file wrongful death suits for children would be both a gender classification (intermediate scrutiny) and implicate parental rights (fundamental), making it highly suspect.

Equal protection is also the framework for many voting issues:

Malapportionment of districts that undervalues some votes relative to others can be challenged as equal protection violations under the one‑person‑one‑vote principle.
Racial gerrymandering, where race is the predominant factor in creating districts, is subject to strict scrutiny. Race may be considered, but it cannot be the dominant, overriding factor unless the plan satisfies strict scrutiny (for example, to comply with the Voting Rights Act in a narrowly tailored way).

Levels of Scrutiny

The same three levels of scrutiny apply in both substantive due process and equal protection analysis.

Key Term: Strict Scrutiny
The highest level of judicial review. The government must prove that the challenged law is narrowly tailored (or necessary) to achieve a compelling government interest. The law usually fails.

Key Term: Intermediate Scrutiny
A middle level of review, typically used for gender and legitimacy classifications. The government must show that the law is substantially related to an important government interest. In recent gender cases, the Court has demanded an “exceedingly persuasive justification.”

Key Term: Rational Basis Review
The most deferential standard. The challenger must show that the law is not rationally related to any legitimate government interest. The government usually wins.

Key Term: Compelling Government Interest
A goal of the highest order—typically protecting national security, safeguarding the electoral process, or remedying recent and specific discrimination—that can justify infringement of fundamental rights or use of suspect classifications.

Key Term: Important Government Interest
A substantial objective, such as traffic safety, promoting equal opportunity, or preventing discrimination, used in intermediate scrutiny analysis.

Key Term: Legitimate Government Interest
A broad and generally low‑threshold objective—such as public health, safety, morals, or basic economic regulation—sufficient for rational basis review.

Key points:

Strict scrutiny: Applied when a law:
- Burdens a fundamental right, or
- Uses a suspect classification (e.g., race, national origin, certain alienage classifications by states).
Under strict scrutiny:
- The government bears the burden of proof.
- The law must be narrowly tailored or necessary to achieve a compelling interest.
- Courts look for less restrictive alternatives; if a less restrictive means would serve the interest, the law fails.
Intermediate scrutiny: Applied to:
- Gender classifications
- Legitimacy (born in or out of wedlock)
Under intermediate scrutiny:
- The government typically bears the burden to show an important interest and a substantial relationship between the law and that interest.
- In gender cases, the Court often requires an “exceedingly persuasive justification.”
Rational basis: Applied to:
- Age, disability, wealth, and most economic and social regulations
- Sexual orientation (under current Supreme Court doctrine, though some cases show a more searching “rational basis with bite”)
- Nonfundamental rights (e.g., business regulation, wages, housing codes)
Under rational basis review:
- The challenger bears the burden to show the law is arbitrary or irrational.
- The government need not articulate its actual purpose; any conceivable legitimate interest will suffice.
- The law is upheld if there is any reasonably imaginable rational relationship between the classification and a legitimate interest.

Sometimes the Court has applied a more searching rational basis review, often called “rational basis with bite,” in cases involving groups such as people with intellectual disabilities or gay people where animus appears to motivate the law. The Court still formally applies rational basis but carefully examines whether any legitimate purpose is truly served.

Burden of Proof

For exam purposes, keep these allocations clear:

Strict scrutiny: Government bears the burden; law presumed invalid unless justified.
Intermediate scrutiny: Government usually bears the burden; law may be upheld but often struck down, especially in gender cases.
Rational basis: Challenger bears the burden; law presumed valid if any conceivable legitimate interest supports it.

How to Analyze Fundamental Rights on the MBE

Use a structured approach:

Is there state action?
If the conduct is purely private, constitutional claims generally fail. Look for government actors, use of government authority, or heavy entanglement.
What is the claimant’s interest?
- Is it one of the recognized fundamental rights (marriage, procreation, parental control, voting, interstate travel, privacy, First Amendment freedoms, refusal of medical care)?
- Or is it an economic, social, or general liberty interest (e.g., education, business regulation, government employment, welfare benefits)?
Who is affected?
- If the right is denied to everyone, frame the issue primarily as substantive due process.
- If it is denied to some but not others, consider equal protection and identify the classification (e.g., race, gender, new residents, property owners vs non‑owners).
Does the law burden a fundamental right or use a suspect/quasi‑suspect classification?
- If yes, apply strict scrutiny (for fundamental rights and suspect classifications) or intermediate scrutiny (for gender/legitimacy).
- Otherwise, apply rational basis review.
What governmental interest is asserted (or conceivable)?
- Fundamental rights / suspect classifications → interest must be compelling.
- Intermediate scrutiny → interest must be important.
- Rational basis → interest need only be legitimate (even abstract goals like public safety, economic regulation, or moral judgments in some contexts).
Is the law sufficiently tailored?
- Strict scrutiny → narrowly tailored/necessary; often requires least restrictive means or something close to it.
- Intermediate scrutiny → substantially related; the fit must be close but need not be perfect.
- Rational basis → only a conceivable rational relationship is needed; overinclusive or underinclusive laws are usually tolerated.
Who has the burden of proof?
- Government under strict or intermediate scrutiny.
- Challenger under rational basis.
Could another constitutional provision be a better fit?
- If speech, religion, association, or the press is directly regulated, First Amendment doctrine typically governs.
- If federal laws are involved, consider whether the issue is preemption, commerce clause, or structural rather than individual rights.

Worked Example 1.1

A state law prohibits all unmarried adults from adopting children. Is this law likely to be constitutional?

Answer:
No. The right to family formation and child‑rearing is fundamental. The law substantially interferes with that right by categorically excluding unmarried adults from adopting, even if they would be fit parents. Strict scrutiny applies. The state would need to prove that the blanket ban is necessary to achieve a compelling interest (such as child welfare) and that no less restrictive alternative (like individualized fitness assessments) would suffice. A categorical ban on all unmarried adopters is not narrowly tailored and will almost certainly fail strict scrutiny under substantive due process and equal protection.

Worked Example 1.2

A city requires all residents to obtain government approval before moving to another state. Does this violate a fundamental right?

Answer:
Yes. The right to interstate travel is fundamental. Conditioning a resident’s ability to leave the state on prior government approval imposes a direct and substantial burden on that right. Strict scrutiny applies. The city would need to show that the requirement is necessary to achieve a compelling interest and that no less restrictive alternative exists. It is highly unlikely that any such justification would succeed, so the law is unconstitutional.

Worked Example 1.3

A state law requires all voters to pass a literacy test. Is this subject to strict scrutiny?

Answer:
Yes. Voting is a fundamental right. A literacy test directly restricts access to the ballot and has historically been used to disenfranchise racial minorities and the poor. Because it burdens the right to vote, strict scrutiny applies under equal protection. The state’s interests in an informed electorate or preventing fraud can be served by less restrictive means, such as voter education. Literacy tests are not necessary to a compelling interest and are unconstitutional.

Worked Example 1.4

A state charges a $300 filing fee to obtain a divorce. An indigent spouse cannot afford the fee and is denied access to divorce court. Which level of scrutiny applies?

Answer:
The case implicates both due process and equal protection. Marriage and divorce are part of the fundamental right of privacy and family autonomy. Denying an indigent person access to the courts to dissolve a marriage effectively burdens that fundamental right based on inability to pay. Strict scrutiny applies. The state’s interest in defraying administrative costs is not compelling enough to justify denial of a fundamental right, especially when less restrictive means (e.g., waiving the fee for indigents) are available. The Constitution requires waiver of such fees when necessary to avoid denial of a fundamental right.

Worked Example 1.5

A state requires a one‑year residency before new residents may vote in state elections. Is this requirement likely constitutional?

Answer:
No. The law discriminates between long‑term and new residents in exercising the fundamental right to vote and burdens the fundamental right to travel. Equal protection is the primary framework, but the rights at stake are the right to vote and travel. Strict scrutiny applies. The state might argue interests in preventing voting fraud or ensuring familiarity with issues, but these interests can be met through less restrictive means (like shorter residency requirements, registration deadlines, and ID requirements). A one‑year durational residency requirement for voting is not narrowly tailored and is unconstitutional.

Worked Example 1.6

A state reduces cash welfare benefits for new residents to half the level provided to residents who have lived in the state for at least one year. The state claims this encourages fiscal responsibility. A newly arrived resident sues.

Answer:
The law burdens the fundamental right to travel by treating newly arrived bona fide residents less favorably than long‑term residents with respect to basic subsistence benefits. Equal protection and the Privileges or Immunities Clause of the Fourteenth Amendment are both implicated. Strict scrutiny applies. Encouraging fiscal responsibility is at most an important or legitimate interest, not compelling, and discriminating against new residents is not narrowly tailored to that goal. The rule is unconstitutional.

Worked Example 1.7

A public university charges an application fee of $200. A poor applicant cannot afford the fee and challenges it as a denial of due process and equal protection.

Answer:
There is no fundamental right to higher education or to admission to a particular public university. The fee is a condition on a nonfundamental benefit, so rational basis review applies. The state’s interest in defraying administrative costs and managing demand is legitimate, and the fee has a rational relationship to those interests. The Constitution does not require a fee waiver in this context. The challenge fails.

Worked Example 1.8

A state statute limits admission to its bar (license to practice law) to U.S. citizens. A lawful permanent resident who lives and pays taxes in the state is denied admission solely for lack of citizenship and sues.

Answer:
This is an alienage classification by a state in access to a private profession. Alienage, when used by states in this context, is generally treated as a suspect classification, triggering strict scrutiny under equal protection. The practice of law, although licensed by the state, is largely private employment and not part of the “political function” exception that allows states to reserve some public jobs to citizens. The state must show that denying bar admission to noncitizens is necessary to a compelling interest, which it cannot. The requirement is unconstitutional.

Worked Example 1.9

A state law allows only mothers, but not fathers, to obtain a court order changing a child’s surname. A father challenges the law.

Answer:
The law classifies based on gender and also interferes with a parent’s right to be involved in decisions about a child’s upbringing, a fundamental right. At a minimum, intermediate scrutiny applies because of the gender classification, and strict scrutiny is arguably appropriate due to the burden on parental rights. The state must articulate an important or compelling interest and show a substantial or necessary relationship between the sex‑based rule and that interest. Stereotypes about mothers being primary caregivers are not an “exceedingly persuasive justification.” The law is unconstitutional.

Worked Example 1.10

A city immediately suspends a tenured (for‑cause) public employee after receiving credible evidence that the employee has embezzled city funds. The city provides no pre‑suspension hearing but offers a full hearing one week later with back pay if the charges are not sustained. The employee claims a violation of procedural due process.

Answer:
A tenured public employee has a property interest in continued employment, so procedural due process applies. However, the Mathews balancing test allows flexibility. Here, the city has a strong interest in promptly suspending an employee suspected of serious misconduct affecting public funds. A prompt post‑suspension hearing with potential reinstatement and back pay can satisfy due process when there are significant reasons not to keep the employee on the job pending a hearing. Given the short delay (one week) and the promise of back pay, the procedures are likely sufficient and constitutional.

Exam Warning

Laws that merely regulate economic activity, business, or social welfare (such as minimum wage laws, occupational licensing, or housing codes) are not subject to strict scrutiny simply because they affect livelihoods. Do not confuse economic rights with fundamental rights. Such regulations typically receive rational basis review, even if they significantly impact particular individuals or businesses.

Also be careful not to assume that education is a fundamental right. Disparities in school funding or quality generally receive only rational basis review, unless a suspect classification or fundamental right is independently implicated.

Revision Tip

Memorize the core list of fundamental rights: marriage, procreation, contraception, parental control over child‑rearing and education, family living arrangements, voting, interstate travel, privacy in adult consensual intimacy, refusal of unwanted medical treatment, and First Amendment freedoms. Then connect each to strict scrutiny and practice spotting when a question is really about due process versus equal protection.

Key Point Checklist

This article has covered the following key knowledge points:

Fundamental rights for MBE purposes include marriage, procreation, contraception, parental control, family living arrangements, voting, interstate travel, privacy, refusal of certain medical treatment, and First Amendment freedoms.
Fundamental rights are primarily protected through substantive due process when denied to everyone and through equal protection when denied to some but not others.
Government action that substantially burdens a fundamental right or uses a suspect classification is subject to strict scrutiny.
Strict scrutiny requires the law to be narrowly tailored (or necessary) to achieve a compelling governmental interest; the government bears the burden of proof.
Intermediate scrutiny applies mainly to gender and legitimacy classifications; the government must show the law is substantially related to an important interest and provide an “exceedingly persuasive justification” in gender cases.
Rational basis review applies to economic and social legislation and nonfundamental rights; the challenger bears the burden to show irrationality or animus.
Procedural due process requires fair procedures before intentional deprivation of life, liberty, or property, with more process required as the interests become more significant.
The Mathews balancing test weighs the individual interest, the risk of error and value of additional safeguards, and the government’s interest in efficiency and security.
Equal protection and substantive due process can both apply to the same law; on MBE questions, identify whether the issue is “who is burdened” (classification) or “what right is burdened” (substantive right).
Economic regulation, education policy, and most social welfare legislation are reviewed under rational basis, not strict scrutiny, unless tied to a fundamental right or suspect classification.
The right to interstate travel and the right to vote are frequent exam contexts for strict scrutiny, especially when durational residency or wealth‑based barriers are imposed.
Durational residency requirements that disadvantage newly arrived residents in accessing basic benefits often burden the right to travel and trigger strict scrutiny.
Access‑to‑courts issues for indigents are analyzed under both due process and equal protection, and strict scrutiny may require fee waivers when fundamental rights are at stake (e.g., marriage, divorce, criminal and parental‑rights appeals).
When speech, religion, or association is directly regulated, specific First Amendment doctrines usually govern instead of generic fundamental‑rights or equal‑protection analysis.

Key Terms and Concepts

State Action
Fundamental Right
Privacy Right
Substantive Due Process
Procedural Due Process
Equal Protection Clause
Suspect Classification
Quasi‑Suspect Classification
Strict Scrutiny
Intermediate Scrutiny
Rational Basis Review
Compelling Government Interest
Important Government Interest
Legitimate Government Interest
Undue Burden (Abortion Context)
Right to Travel
Right to Vote
One Person, One Vote
Durational Residency Requirement
Mathews Balancing Test

Individual rights - Fundamental rights