Hastings Law Journal


Alan Brownstein


The conventional understanding of fundamental rights in constitutional law recognizes three theoretically distinct issues: the existence of the right, the infringement of the right, and the government justification for the infringement. In practice, however, judicial inquiries regarding these categories of right, infringement, and justification often seem indistinct and intrinsically connected to each other. More specifically, courts have directed their attention to the first and third of these inquiries, only rarely addressing as a primary matter the question of what constitutes an infringement of a right. The Supreme Court's decision in Planned Parenthood v. Casey, however, departs from this tradition. The three-Justice plurality viewed the issue of infringement as dispositive, determining the constitutionality of particular abortion regulations on the basis of whether or not they imposed an "undue burden" on the right to an abortion. In response, dissenting Justices vehemently challenged the plurality's reasoning as both unprecedented and unprincipled.

In his Article, Professor Brownstein examines the "undue burden" standard utilized in Casey, and uses it as a prism through which the broader question of the nature of constitutional infringements is analyzed. Professor Brownstein argues that the "undue burden" standard of the Casey plurality is reflected in one form or another throughout the fundamental rights case law of the past forty years. According to Professor Brownstein, Casey's uniqueness stems from its unprecedented forthrightness in directly confronting the issue of what constitutes an infringement and its explicit recognition that the resolution of this issue may be the dominant and controlling perspective in determining the scope of a fundamental right. Finally, Professor Brownstein argues that by carefully considering what constitutes an infringement of a particular right, courts can more precisely and effectively define the constraints imposed by the Constitution on state power and the protection provided by the Constitution to individual rights.

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