MBE Rules · Constitutional Law
Substantive due process — fundamental rights
The rule
Strict scrutiny applies to regulations burdening fundamental rights (privacy/marriage/contraception/childrearing/voting/interstate travel/refusal of life-sustaining treatment). Government must show the law is narrowly tailored to a compelling interest.
In plain English
If a law limits a basic right like privacy or voting, it must be extremely necessary and serve an important purpose to be allowed.
Worked example
A city bans all protests in parks to reduce noise. This impacts free speech, a fundamental right. The city must prove this ban is crucial and the only way to achieve peace, or the law will be struck down.
Memory hook
FUNDAMENTAL RIGHTS: Protect the core, scrutinize more. Strict scrutiny for privacy, marriage, voting, travel, and life choices—government must justify its compelling need.
The trap
Students think: Any important right is fundamental. Wrong, because only rights deeply rooted in tradition are. The actual test is if the right is 'implicit in the concept of ordered liberty.'
How examiners test it
The MBE loves: law limiting a fundamental right, like voting or marriage. Trap: students think any governmental interest suffices. Remember: it must be compelling and narrowly tailored.
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