The Burger Court and Unspecified Rights: On Protecting Fundamental and Not-So-Fundamental "Rights" or "Interests" Through a Flexible Conception of Equal Protection

Abstract

In the field of substantive or interests not specifically addressed by the Constitution's text, the Burger Court has mounted its collective steed-with individual Justices facing opposite ends-and ridden off forcefully in several directions at once. The Court now purports to limit the fundamental rights branch of modern equal protection doctrine to those cases involving restrictions on rights explicitly or implicitly guaranteed by the Constitution.'' Only in those cases and in cases involving suspect categories of classification is the strict, compelling-interest/least-restrictivealternative-means standard of scrutiny to be employed; all others require application of the more lenient rational basis equal protection formula. In practice, however, the Justices have frequently invoked rationality rhetoric-or obscured the standard of scrutiny being applied-and then subjected challenged regulations to more rigorous examination than the rational basis test would dictate.