[eDebate] Discussion of a Potential "Fundamental Rights" Topic

Anjali Vats avats
Sat May 27 12:19:46 CDT 2006

I was studying for the Bar when this idea came to me about topic wording. I think it responds to many of Gordon's questions about areas etc. It isn?t fleshed out right now but I was hoping to get some community feedback about the idea.  

Here is the short version?

The topic would have the Supreme Court recognize a new ?fundamental right? in one or more of a list of areas (or areas combined with cases). One resolution might be:

Sample Resolution #1

The United States Supreme Court should recognize a fundamental right to one or more of the following: education, the right to die, non-traditional familial rights, alienage, partial birth abortion and homosexuality. 

?Fundamental rights? are basically those rights that are ?most protected? under the Constitution. When a plaintiff brings suit under the Due Process Clause or the Equal Protection Clause, the court must use the highest level of judicial scrutiny, strict scrutiny, to determine whether there is a constitutional violation. In other words, the government has a much harder time proving that it?s okay to infringe on the constitutional right. 

Including ?fundamental rights? in the topic makes it unidirectional, allows access to many of the big issues that have been discussed, creates a stable solvency mechanism and possibly deals better with some of the generics than an overrule/overturn topic or an areas topic. Also, I think that some variation on a fundamental rights topic will allow access to some of the individual rights issues that everyone seems to want to debate while creating a better affirmative response to generics and agent counterplans.

One caveat is that I haven?t done a lot of research beyond cursory searches for titles. I am not sure what the warrants are for making something a ?fundamental right? but I suspect there is some very good, and hopefully well-warranted literature.  I also think that including the term ?fundamental right? should be seen as a way of tweaking the overrule/overturn or areas topics that have been suggested and would be comparatively better.

Without getting into the details, here are some of the areas that could be recognized as fundamental rights that aren?t recognized as fundamental rights now:

? Homosexuality 
? Education (Segregation & Economy) 
? Partial-Birth Abortions 
? State Funding for Abortions 
? Non-Traditional Family Rights 
? Extra-Marital Relationships 
? Gay Marriage 
? Assisted Suicide 
? Right to Die 
? Federal Alienage Regulations (Immigration and National Security)
? Voting for Felons 

A way more extensive discussion is below. This stuff is confusing and I?m still trying to work it out in my own head, but I think there?s something really promising here.

If you want to skip to the good part, then read from the section labeled ?Existing Rights Classifications? onward.

Back to studying.


Defining ?Fundamental Rights?

?Fundamental rights? are one category of rights that are protected by the Equal Protection Clause and/or the Substantive Due Process Clauses of the Fifth and Fourteenth Amendments.  A brief overview of these protections is helpful (from my constitutional law study guide, no less):

?The Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution have been invoked in a number of distinct contexts to protect various classes or categories of rights?one classification?used would describe some due process rights as property rights and others as personal rights.  Another classifying principle?involves the distinction between substantive and procedural rights?? 

See the Appendix for contextual definitions of ?fundamental rights? and commentary.

Obviously, the community seems to be heading in the direction of debating about personal rights, which are protected by one or both of the Equal Protection Clause and the Substantive Due Process Clauses (The Fifth Amendment Due Process Clause applies to the federal government and the Fourteenth Amendment Due Process Clause applies to the states).  

Initially, the Supreme Court only recognized substantive rights to economic rights.  However, it then began recognizing personal rights.  A number of important cases were decided including Griswold v. Connecticut (recognized the right to privacy in the marital relationship), Carey v. Population Services International (expanded access to contraceptives) and Roe v. Wade (recognizing a fundamental right to choose an abortion).  Since then, a whole body of substantive due process rights has developed.  Those rights that are considered to be ?fundamental rights? under substantive due process are also fundamental rights for equal protection purposes.  

Equal protection jurisprudence originates from a slightly different principle.  Substantive due process applies when everyone is denied a right equally.  For example, in the pre-Roe era, statutes that banned abortion applied equally.  They did not only apply to white women or black women.  Abortion rights, when they were denied, were denied equally.  On the other hand, equal protection claims exist when the state discriminates against one group by classifying and treating them differently.   There are three types of classifications for equal protection purposes, suspect classes, quasi-suspect classes and all other classes.  

Due process claims and equal protection claims use the same basic standards of judicial review.  These standards are as follows (1) strict scrutiny (2) intermediate scrutiny and (3) rational basis scrutiny.  This is the heart of the matter.  When a ?fundamental right? is at issue, strict scrutiny applies.  However, lower levels of scrutiny (i.e. intermediate scrutiny and rational basis scrutiny) apply to lesser rights.  The levels of scrutiny are defined as follows:

Strict Scrutiny: The government must prove that the law is narrowly tailored to achieve a compelling state interest.  There is no presumption of constitutionality.

Intermediate Scrutiny: The government must prove that the law substantially serves an important interest.  There is no presumption of constitutionality.

Rational Basis Test: The plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective.  The law is presumed constitutional.  

Thus, the idea is to take rights that currently are considered reviewed under intermediate scrutiny or the rational basis test and upgrade them to fundamental rights.    

Existing Rights Classifications

The crux of the issue is which rights are considered to be ?fundamental rights? and which rights are considered to be less important.  Rights that are considered to be fundamental under the Due Process Clause are also fundamental under the Equal Protection Clause.  The following rights are defined as ?fundamental rights? for due process and equal protection purposes.  However, note that the jurisprudence may be narrow or broad in protecting that fundamental right:

Fundamental Rights

?	Privacy Rights
- Heterosexual Marriage and Divorce -- Zablocki v. Redhail
- Traditional Familial Relationships
- The Right of Parents to Raise Children -- Wisconsin v. Yoder
- The Right for a Family to Live Together -- Moore v. City of Cleveland
- Contraception -- Griswold v. Connecticut
- Abortion -- Roe v. Wade and Planned Parenthood v. Casey
- Refusal of Medical Treatment -- Cruzan v. Missouri Department of Health
- Consensual Sexual Relations -- Lawrence v. Texas

?	Voting -- Gomillion v. Lightfoot and Shaw v. Reno

Classifications are divided into three categories for equal protection purposes.  The appropriate level of scrutiny is based on the type of discrimination:

Suspect Classes (Strict Scrutiny)

?	Race (Including Affirmative Action)
?	National Origin
?	Ethnicity
?	Alienage Classifications by the State

Quasi-Suspect Classes (Intermediate Scrutiny)

?	Sex -- Craig v. Boren 
?	Illigitimacy -- Trimble v. Gordon
?	Illegal Aliens -- Plyer v. Doe

Other Classes (Rational Basis Scrutiny)

?	Mentally Retarded -- City of Cleburne v. Cleburne Living Center (Maybe Intermediate Scrutiny -- It's unclear).
?	Homosexuality -- Romer v. Evans
?	Alienage Classifications by the Federal Government
?	Age Discrimination
?	Wealth

Perhaps the more important issues to note are those that are exceptions to fundamental rights and those that are not fundamental rights.  Here is a list of some rights that are not fundamental:

Non-Fundamental Rights

?	Homosexuality -- Lawrence v. Texas
?	Education -- San Antonio School District v. Rodriguez  
?	Partial-Birth Abortions -- Stenberg v. Carhart
?	State Funding for Abortions -- Planned Parenthood v. Casey
?	Non-Traditional Family Rights -- Village of Belle Terre v. Boraas
?	Extra-Marital Relationships -- Hollenbaugh v. Carnegie Free Library
?	Gay Marriage -- Lawrence v. Texas 
?	Assisted Suicide -- Washington v. Glucksburg 
?	Right to Die -- Cruzan v. Missouri Department of Health
?	Federal Alienage Regulations
?	Voting for Felons (Being Litigated?)

The Benefits of a ?Fundamental Rights? Topic

Essentially, arguing that certain issues which are not currently fundamental rights, should be fundamental rights mitigates several of the problems that have been noted about the topic (1) it makes it a bit more difficult to simply create an agent counterplan (2) it allows debates about those issues that the debate community seems to find important (3) it creates a clear direction to the resolution and predictability to the affirmative as well as improving the quality of affirmative ground and (4) it provides a high degree of uniqueness because the Supreme Court isn?t much in the business of recognizing new rights, let alone fundamental rights, right now.  These advantages will be discussed a bit more in the ground section.

There are a number of debates that this resolution can access even though it has the common theme of fundamental rights.  For example, the alienage debate accesses the national security and immigration debates because it forces the federal government to show a compelling state interest before discriminating on the basis of alienage.  The education debate, based on Rodriguez, accesses two important issues that Ede has been discussing about.  The first is the segregation debate.  There is a significant amount of debate surrounding Brown v. Board of Education, integration and the recognition of education as a fundamental right.  The second is wealth.  Rodriguez addressed the question of whether disparate wealth, which frequently overlaps with minority status, should be a suspect category.  These are the two most immediately relevant debates.  However, the fundamental rights debate can also access the issues of gay rights, assisted suicide and abortion.  

This resolution also helps to resolve what Gordon pointed out as the growing debate between ?areas? and ?cases.?  In essence, it presents either several narrow areas or areas and cases.  This should access many of the advantages of both theories while making sure that the resolution is not enormous.  The nature of the resolution also provides direction in choosing areas from the list that Gordon offered.  The list is self-selected based on existing fundamental rights and suspect classifications.

Possible Approaches and Resolutions

The basic idea that I have is that one or both of the Equal Protection Clause and the Due Process Clause can be the subject of the resolution.  The first option is to recognize substantive due process rights to any of the items in the ?non-fundamental rights? list.  The second option is to require the affirmative to change one of the quasi-suspect or other classes to suspect classes.  The third option is not to be specific and just use the term ?fundamental right? which is common to both due process and equal protection jurisprudence.  

Within these areas, the topic can be written narrowly or broadly.  Several examples follow (obviously there are a great many faults with these):
Sample Resolution #1 (Same as Above)

The United States Supreme Court should recognize a fundamental right to one or more of the following, education, the right to die, non-traditional familial rights, alienage, partial birth abortion and homosexuality.  

This resolution has the advantages of using the broad term ?fundamental rights? which access both the Fifth Amendment and the Fourteenth Amendment debates.  It also requires the affirmative to use any particular mechanism which may or may not be beneficial.  	

Sample Resolution #2

The United States Supreme Court should recognize a fundamental substantive due process right to one or more of the following: education, the right to die, non-traditional families, alienage, partial birth abortion and homosexuality.  

This resolution, because it specifies a mechanism, i.e. the Due Process Clause, builds in space for counterplans using alternate grounds to be competitive.  The obvious choice might be the Equal Protection CP.  However, specific areas may have specific counterplans in the literature.  

Sample Resolution #3

The United States Supreme Court should use a strict scrutiny standard to evaluate one or more of the following legislative classifications: sex, illegal alienage, disability, alienage, age and wealth.

This is the flip side, an equal protection topic.  It again has built in negative counterplans.  

Sample Resolution #4

The United States Supreme Court should increase fundamental rights in the United States by overturning one or more of the following: San Antonio School District v. Rodriguez, Cruzan v. Missouri Department of Health, Washington v. Glucksburg, Stenberg v. Casey, Lawrence v. Texas and Village of Belle Terre v. Boraas.  

One other way to craft the resolution rests on the basis for the Supreme Court?s decision.  For example, many fundamental rights cases rely on the theory of the ?penumbras? or ?emanations? of the Constitution to recognize rights that are not enumerated.  Another popular ground for fundamental rights decisions is ?tradition.?  The resolution could specify one of these basis and open up the critical literature that exists for each of those grounds.  

A couple of other things also occur to me.  First, if the resolution merely specifies creating a fundamental right in different areas (like Sample Resolution #1) gives the affirmative the flexibility to choose one or more cases to overrule.  For example, the abortion topic would allow affirmatives to overturn the ?undue burdens? test established in Planned Parenthood v. Casey and make it easier to get an abortion (Note that the Supreme Court is not always clear in these areas.  I think that there are some ?fundamental rights,? like abortion and marriage, that can still be regulated as long as regulations on them do not constitute an ?undue burden.?  I imagine the topic may have to deal with some issues of where the line is for a fundamental right, though I?m not sure that will negatively impact ground or functionally change the affirmative).  Alternately, the affirmative could just create a fundamental right to partial-birth abortions.  So, some of these areas, at least, provide some space for innovation.  

Second, is that the ?list? of fundamental rights in an equal protection resolution will probably have to be different than that in a substantive due process resolution.  If someone can speak to this, that would be great.  My impression is that the literature will not support creating some rights, including alienage, age and wealth, on substantive due process grounds.  If a court did that, the effect would be something like, there is a fundamental right to be rich (substantive due process) as opposed to poor people should be treated the same as rich people (equal protection).  Since I suspect that the community, if they go with this idea, will want rights from both the due process and equal protection lists, it is probably best not to specify grounds at all for the recognition of the fundamental right.  

Anyway, you get the idea.  There are a number of ways to craft a ?fundamental rights? topic.

Possible Affirmatives

Affirmatives could use a variety of methods for overturning cases depending on the resolution.  The key advantages to this topic are that the affirmative has a stable and defensible mechanism for solvency.  In addition, the affirmative has better arguments than it might have on an overrule topic or a mere area topic to agent counterplans.  

In the area of education, for example, the affirmative could just have the Supreme Court recognize a fundamental right to education.  This opens a wealth of advantage areas including segregation and integration, competitiveness, spending and democracy:

(  ) The Supreme Court should recognize a federal fundamental right to education. 

Bitensky ?92
(86 Nw. U.L. Rev. 550) 

The legal case for the right has been reviewed in some depth in Part III of this Article and, if found persuasive, should suffice as reason enough for recognizing the right. However, it would be irresponsible to leave readers with the impression that this is simply a technical question of law which can just as well be decided now or later. The education debacle has persisted into the 1990s, and what is on the line is nothing less than the future of our children individually and of the nation as a whole. 460 If a positive constitutional right to education could contribute to setting in motion the dynamics for reversing the crisis and undoing its pernicious damage, then there is some real urgency in recognizing the right at an early date. It is important, therefore, to explore, from a policy perspective, whether the right has the potential to engender or act as the catalyst for a revitalization of American education. 
At first glance, the right might seem superfluous, embodying a fine sentiment, to be sure, but having little practical bearing on the education crisis. After all, every state has enacted statutes requiring that children of eligible age attend school; 461 almost every state has adopted constitutional provisions that require it to provide free public education. 462 Moreover, the federal government, even in its supplemental role, already has indirectly assumed a large share of responsibility for schooling 463 through laws aiding and/or shaping education under the Spending Clause 464 and other provisions of the Constitution. 465 What could an affirmative right to education under the federal Constitution add to all this that would be of any significance?

This article also provides an in-depth discussion of the various constitutional grounds for recognizing a fundamental right to education.  It outlines advantages as well.  For another article about why education should be recognized as a fundamental right see 2005 BYU Educ. & L. J. 261 as well.

(  ) Education is vital to discussions over segregation, integration, competitiveness and democratic process.  

Palumbo ?04
(2004 BYU Educ. & L. J. 393)

The Supreme Court has acknowledged that "education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all." 52 Indeed, an adequate public education is necessary to prepare our nation's citizens to "exercise the role of self-government," and to produce the well-trained and educated workforce upon which our economic system relies. 53

In Brown v. Board of Education, the Supreme Court found that racial segregation in public schools deprives schoolchildren of equal educational opportunities in violation of the Equal Protection Clause of the Fourteenth Amendment. 54 Chief Justice Warren's majority decision stressed the significance of education to the nation's children and society as a whole:

Education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. 55

(  ) The Supreme Court should recognize a fundamental right to education that includes extracurricular activities.  	

Palumbo ?04
(2004 BYU Educ. & L. J. 393)

Despite its rulings in Vernonia and Earls, the Supreme Court, has explicitly left open the possibility that some minimal level of education is in fact constitutionally protected. 23 The Due Process Clause of the Fourteenth Amendment provides a constitutional basis for the recognition of this right. 24 In addition, the recent decision in Lawrence v. Texas 25 demonstrates a new willingness by the Court to interpret the Due Process Clause more broadly to protect rights that are not explicitly enumerated in the Constitution. 26 Hence, should the Court be confronted again with the question of whether the Constitution guarantees a right to education, it is now more likely to recognize a fundamental right to a minimally adequate education.

While some commentators have argued for the recognition of a fundamental right to a minimally adequate education, 27 they have not addressed the important issue of whether extracurricular activities would be protected by the acknowledgment of this right. This Note will demonstrate why the Supreme Court should recognize a fundamental right to a minimally adequate education. This Note will also argue that this fundamental right should be broad enough to protect students' access to extracurricular activities. Part II details the treatment of education as a fundamental right under state and federal law. Part III suggests that the Court may now be ready to recognize this right in the wake of the Lawrence decision. Part IV points to the constitutional bases for the recognition of a fundamental right to a minimally adequate education. Part V defines the scope of this right to include  [*397]  extracurricular activities. Part VI concludes by urging the Supreme Court to recognize a fundamental right to a minimally adequate education in order to protect fully the educational opportunities of the nation's schoolchildren.

Other variations on this affirmative could include only doing the education portion of the plan and not the extracurricular activities.  

Obviously, there is a great deal of ground to be explored in each of the areas listed.  Hopefully these cards are representative of a rich literature base.  

Possible Negative Ground

The negative ground for this resolution is similar to other possible resolutions.  For example, the negative can read agent counterplans and the Constitutional Convention CP.  In addition, the negative has the ability to read counterplans that are (1) narrower than the affirmative and (2) use grounds other than the recognition of a fundamental right.  The negative, depending on the topic, may also have the ability to use due process instead of equal protection and vice versa. 

Possible disadvantages include modeling arguments, and perhaps devolution (39 S. Tex. L. Rev. 951), competitiveness, court based arguments such as judicial activism, politics and the economy.   

Given the affirmative above, the negative could counterplan to only recognize a fundamental right to extracurricular activities and read an economy or spending disadvantage.  Counterplans could also solve various advantages, such as competitiveness, in different ways.  

A Note about Bidirectionality

I just wanted to provide one observation about bidirectionality that may or may not have already been discussed.  I think that it?s important to have a narrow topic this year because of the potential bidirectionality of the topic.  
Given a topic that requires simply ?overturning? or ?overruling,? even something as specific as the ?undue burdens? test, would create a bidirectional topic. In essence, the affirmative could overrule Planned Parenthood v. Casey, for example, by lowering the standard, i.e. requiring that states never burden abortion rights, or increase the standard, i.e. holding that abortion is never legal. This will be an even bigger nightmare in terms of bidirectionality if there is no limit, as many have pointed out, on the scope of the precedent to be altered. Taking the example of Grutter v. Bollinger, the affirmative could change any of the precedents involved, including the level of scrutiny or the test for legality of affirmative action. The affirmative could then increase or decrease the level of scrutiny or make the test for legality of affirmative action more or less stringent. The worst part is that there are far more than just two holdings in Grutter that could be changed. The results are obvious; ten court cases, each with ten possible holdings that can be altered in either direction and with a laundry list of advantages creates limitless affirmative ground.  The problem of bidirectionality is magnified by an area based topic.  Unless there is wording to limit whether the affirmative can cause the court to become more or less conservative, there will likely be cases in both directions.  I think one possibility is that affirmatives move so far to the right that they make the current Supreme Court look ?moderate.?

It seems to me that no matter what resolution the topic committee pursues, it will be important to combine both the ?areas? and ?cases? approaches.

Appendix:  Definitions of Fundamental Rights

(  ) Fundamental rights are those rights based in the Constitution.


A fundamental right is a right that has its origin in a country's constitution or that is necessarily implied from the terms of that constitution. These fundamental rights usually encompass those rights considered natural human rights.

This is an important piece of evidence because it indicates that fundamental rights can either be specifically enumerated, as in ?life, liberty and property? or implicit, or as the Supreme Court says, part of the ?penumbras.?  Privacy, for example, is an implied right.  Implied individual rights can be ?implied? in several ways, be it based on substantive due process or equal protection.  Either way, the end result is the same, a high level of scrutiny is applied.

(  ) American fundamental rights are not specifically enumerated in the Constitution.


In American Constitutional Law, fundamental rights are defined as inherent rights not specifically enumerated in the Constitution. Such rights include:

?	the right to privacy (including the right to an abortion)
?	the right to marry and procreate
?	the right to interstate travel
?	the right to vote.

Any restrictions on these rights are treated with the same strict scrutiny as restrictions on enumerated rights in the Constitution. If they are denied to everyone, it is an issue of substantive due process. If they are denied to some individuals but not others, it is an issue of equal protection.

I think this evidence makes the clearest distinction.  Take again the example of ?life, liberty and property.?  All three of those rights are held to the highest level of scrutiny (strict scrutiny) because they are specifically enumerated in the Constitution.  However, there has to be a means of recognizing other fundamental rights, such as the right to abortion, that are not specifically named in the Constitution.  Plaintiffs and the Supreme Court have two ways of recognizing new fundamental rights.  The first is through the substantive due process clause.  In due process cases, a right is denied to everyone.  For example, no one had a right to privacy before the Supreme Court?s ruling.  On the other hand, equal protection claims exist when one group is treated differently, or discriminated against.  An example of this would be state legislation that gives money to citizens but not non-citizens (alienage-based discrimination).  

The end result of creating a fundamental right is the same whether the process of due process or equal protection was used in bringing suit.  Thus, the question of whether fundamental rights, due process or equal protection are named in the resolution is one of specificity.  

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