Incidental Burdens on Fundamental Rights

Abstract

Nearly every governmental action has the incidental effect of burdening some fundamental constitutional right. In this Article, Professor Dorf argues that constitutional text, history, and structure, as well as normative considerations, require that courts treat these burdens seriously. How, though, can government recognize these incidental burdens without rendering itself powerless to achieve its legitimate ends? Professor Dorf analyzes the Supreme Court's approach to incidental burdens on free speech, free exercise of religion, and privacy rights. In these areas, he discerns a tendency to apply close scrutiny to incidental burdens that are substantial. He then argues that the nature of the impinged right should also influence the Court's approach to an incidental burden. Finally, Professor Dorf reexamines common understandings of the distinction between direct and incidental burdens. He contends that his proposed framework ought to be applied not only to incidental burdens, but also to direct burdens on conduct facilitating the exercise of a fundamental right. Burdens on equality norms, however, need not be substantial to elicit close scrutiny.