Share this
PREVIOUS ARTICLE ALL CONTENTS Next ARTICLE

The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny, Richard H. Fallon, Jr.

Reviewed by Howard Schweber

BUY

 

Richard H. Fallon Jr. has produced a major work. His ambition in The Nature of Constitutional Rights is nothing less than to get us to reconsider the way we think about “rights” as core a concept in constitutional thought. Fallon starts with an observation in American constitutionalism that all rights are not equal. Some rights are described as “fundamental.” It is around these rights that courts throw the Constitution’s protections to the greatest degree by applying “strict scrutiny,” the requirement that certain actions by the government can only be justified if they serve “compelling interests” and are “narrowly tailored” to achieve their end.

Fallon notes that strict scrutiny is a modern creation, identifying its first clear expression as an element of a majority holding in a startling location: Justice Harry Blackmun’s opinion in Roe v. Wade. Thereafter, the simple binary construct of rational basis/strict scrutiny gave way to a graded spectrum of possibilities: intermediate scrutiny, rational basis plus scrutiny, and a “sliding scale” treatment of strict scrutiny that varied in different situations (pp. 37–39), Fallon asks, what happened to our understanding of “rights&rdq

To continue reading, see options above.

About PSQ's Editor

ROBERT Y. SHAPIRO

Full Access

Join the Academy of Political Science and automatically receive Political Science Quarterly.

CONFERENCES & EVENTS

WEBINAR
Academy Forum | How to Stop Jihadist Foreign Fighters

October 28, 2021

MORE ABOUT THIS EVENT VIEW ALL EVENTS

Editor’s spotlight

The Powell Doctrine

The Rise and Fall of Colin Powell and the Powell Doctrine
Walter LaFeber

MORE ABOUT THIS TOPIC

Search the Archives

Publishing since 1886, PSQ is the most widely read and accessible scholarly journal with distinguished contributors such as: Lisa Anderson, Robert A. Dahl, Samuel P. Huntington, Robert Jervis, Joseph S. Nye, Jr., Theda Skocpol, Woodrow Wilson

view additional issues

Most read

Articles | Book reviews

Understanding the Bush Doctrine
Robert Jervis

The Study of Administration
Woodrow Wilson

Notes on Roosevelt's "Quarantine" Speech
Dorothy Borg

view all

New APS Book

Perspectives on Presidential Elections, 1992–2020   PERSPECTIVES ON PRESIDENTIAL ELECTIONS, 1992–2020

About US

Academy of Political Science

The Academy of Political Science, promotes objective, scholarly analyses of political, social, and economic issues. Through its conferences and publications APS provides analysis and insight into both domestic and foreign policy issues.

Political Science Quarterly

With neither an ideological nor a partisan bias, PSQ looks at facts and analyzes data objectively to help readers understand what is really going on in national and world affairs.

Stay Connected

newsstand locator
About APS