Hastings Constitutional Law Quarterly


Calvin Massey


A spate of cases in the federal courts of appeals has produced sharply divergent views upon the constitutionality of municipal laws establishing a nocturnal curfew for juveniles. The principal disagreement among the circuits concerns the appropriate level of scrutiny to be applied to such laws. Professor Massey canvasses the cases and comments on what these cases may tell us about the methodology of determining fundamental rights for due process purposes. As is often true of substantive due process issues, the dispute is really about the level of generality with which the putative fundamental right ought to be stated. Professor Massey suggests that some of the circuits have erred by framing the claimed right so specifically that the factors relevant to government justification of its infringement of such rights are subsumed into the definition of the claimed right. This permits, indeed encourages, counting government interests twice - once to define the claimed right narrowly and again to justify invasion of that narrowly framed right. Professor Massey suggests that the claimed right should be pitched at a level that is just general enough to require that government interests in curbing its exercise are relevant only to justification but not to definition, illustrating the point by drawing upon the curfew cases decided in the courts of appeals.