One of the most important modern developments in American
constitutional law has been the extension of the Bill of Rights to
the states. The most important guarantees of the first eight
amendments have been incorporated into the Due Process Clause of
the Fourteenth Amendment, along with the doctrine that these are
rights that are so "fundamental" that any restriction is subject to
judicial "strict scrutiny." The process has nationalized
fundamental rights, giving them a preferred dignity and majesty. In
this volume, the renowned constitutional scholar, Milton Konvitz,
traces the development of fundamental rights from the early days of
American jurisprudence through twentieth-century cases involving
the right to privacy, racial discrimination, voting rights,
censorship, and abortion laws. In Konvitz's astute view, the Bill
of Rights in the Constitution of the United States, like the Ten
Commandments, places no priority among protected or guaranteed
rights. He argues that values, ideals, rights, liberties, and
privileges need to be placed in a hierarchical order or scale. The
Supreme Court, acting on a case-by-case basis, has slowly and
cautiously moved to designate some rights as superior to others.
This idea that some rights are of a "fundamental" nature, while
others are not, can be traced back to the early days of the
nation's government. Konvitz shows that there may be said to be not
one, but two or even three bills of rights, one for the Federal
government and one for the States. Still another, may be an
unwritten but evolving Bill of Rights. The Court has recognized
rights or liberties that are in no written constitution, as for
example, a right to marry, a right to have a family, a right to
choose education of one's children in a private, even a religious,
school, rather than a public school. In an illuminating fashion,
Konvitz, whose writings have been cited in Supreme Court decisions,
traces the controversial and very uneven line of development of
such "fundamental rights." This volume is likely the first book on
the subject and a pioneering work in the history of American
constitutional law. Accessibly written for a general and scholarly
audience, it will be of particular interest to political
scientists, historians, and constitutional scholars.
General
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