Strict Scrutiny & Fundamental Rights

Strict Scrutiny & Fundamental Rights

I blathered on a bit earlier today about the differing standards of review that the courts use with respect to laws. As I mentioned, the vast majority of strict scrutiny applications to law seem to be state laws, and disproportionately involved in questions of race and national origin, where various groups have challenged discrimination as violating the equal protection clause of the 14th Amendment.

But what about the application of strict scrutiny to laws that do not discriminate against particular classes, but do impinge on fundamental rights? Because so many of the strict scrutiny decisions are decided based on application of the 14th Amendment (which applies only to the states), I found myself asking, "What are the existing precedents that would justify the Supreme Court applying strict scrutiny to fundamental rights, without the use of the 14th Amendment's equal protection clause?"

So far, I have identified the following cases where the courts applied strict scrutiny (or at least claimed that they did) to federal laws or regulations.

Really serious fundamental human rights questions:

Korematsu v. U.S. (1944) is the Japanese-American internment case--supposedly decided under strict scrutiny, but there is some cynicism about whether the Court really applied strict scrutiny in upholding the internment, or just claimed to do so.

Free speech and campaign contributions questions:

Buckley v. Valeo (1976) is a free speech case wrapped up in a dispute about campaign contribution limits.

FEC v. National Right To Work Committee (1982) is another free speech case involving campaign contributions.

McConnell v. FEC (2003), which upheld the McCain-Feingold limitations on campaign spending.

Obscenity definition questions:

Roth v. U.S. (1957) which held that obscenity was not protected by the First Amendment.

Ginzburg v. U.S. (1966), which also upheld an obscenity statute.

Freedom of religion:

U.S. v. Lee (1982), which argued that requiring an Amish employer to collect Social Security taxes violated the religious freedom guaranteed by the First Amendment.

Can you think of any other Supreme Court decisions that I have missed that involve:

1. A federal law or regulation.

2. A fundamental human right that was allegedly infringed.

3. Do not involve an identifiable class or group that is subject to special treatment? Oddly enough, Roe v. Wade (1973) seems to have been decided based on intermediate scrutiny--although Justice Blackmun's decision seems to weave all over the road. But it doesn't seem to be based on strict scrutiny. Also, cases like Skinner v. Oklahoma (1942) involve discrimination against a particular class--three felony convictions led to sterilization (or as one article described it, "Three strikes and you're snipped").

There probably aren't a lot of these because throughout most of American history, because of the genius of the Constitution in limiting federal power, the job of denying fundamental human rights was taken care of by state legislatures, not Congress. Hence, Gideon J. Tucker's famous observation, "No man's life, liberty, or property are safe while the legislature is in session."

I now need to find the time to read through these decisions, and find out if there is any consistent standard that they use for figuring what constitutes a fundamental human right that requires use of strict scrutiny. If only I didn't have my silly day job (the one that pays the bills) to go to in the morning.