Constitutional Law You Won’t Hear in the Classroom

By Tyler Stoff

James E. Fleming’s lecture on October 31 entitled, “The Myth of Strict Scrutiny for Fundamental Rights,” both explained constitutional law as it relates to fundamental rights and rebutted Supreme Court Justice Antonin Scalia’s legal philosophy – therefore correcting assumptions about rights and their legal categorizations.

Drawing from his recent book entitled Ordered Liberty, Fleming challenged the notion that some rights as fundamental or absolute, suggesting instead that they be balanced with individual responsibilities and virtues under the law.

Professor Fleming argued that the deep case history concerning rights not enumerated in amendments to the Constitution shows that laws do not fall neatly into demanding the passage of “strict scrutiny” or needing to only express a legitimate state interest to have a “rational basis” to be upheld. This contradicts what many scholars, including those at Dartmouth, have taught regarding the use of the Constitution’s due process clause to establish three levels of rights guaranteed to Americans.

Fleming mainly used the Lawrence v. Texas Supreme Court decision of 2003, which struck down a ban of various forms of sexual intimacy, as an example of where the court found that the law did not prohibit a fundamental right. Thus, it did not trigger the “strict scrutiny” assessment, nor did it hold that only a legitimate state interest was necessary to preserve the law. Justice Scalia’s subsequent dissent, attacking the majority opinion for failing to adhere to its supposed prior framework of fundamental rights, superficially supported this liberal view. Fleming claimed this was a deceptive, however, as liberals never suggested this limiting framework themselves. Indeed, the strict, intermediate, and rational scrutiny framework favored in academia is only ever discussed in dissents from major historical cases. The one exception that Fleming did note, however, was the Roe v. Wade decision. This momentous case suspiciously did implicate the failure of abortion restrictions to pass the strict scrutiny of the law required for their constitutionality.

While James Fleming does not endorse a rigid interpretation of rights under the due process clause, he still recognizes them as continuum in line with other aspects of American liberties. “Rights are not absolute trumps,” he stated, arguing that cases like Lawrence v. Texas fit his proposed model rather than the rigid framework Scalia would suggest.