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45 Hastings L.J. 867 (1993-1994)
How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine

handle is hein.journals/hastlj45 and id is 901 raw text is: How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine by ALAN BROWNSTEIN* Introduction The conventional understanding of fundamental rights in consti- tutional law recognizes three distinct conceptual issues. First, there is the question of whether a right exists. Second, it must be determined whether the right has been infringed. Third, there is the problem of whether any infringement can be justified. Typically, each of these issues has its own frame of reference that requires an independent inquiry. In identifying a right and defining its scope, the inquiry is directed at the nature of (and, perhaps, the mo- tive behind) the actions of the individual that constitute the exercise of the right. Thus, we ask whether a person has the right to distribute leaflets on a street corner' or to ingest peyote during a religious cere- mony.2 Resolving the question of whether particular behavior in- volves the exercise of a right is a complex undertaking involving historical, political, and philosophical analysis. In determining whether a right has been infringed, the inquiry is directed at the state's conduct and its effect. Accordingly, assuming we have initially decided that people have a right to express their political opinions, we ask whether a particular law prevents people * Professor of Law, University of California, Davis. B.A. 1969, Antioch College; J.D. 1977, Harvard University. The author wishes to thank Erwin Chemerinsky, Dianne Pothier, and Kevin Johnson for reading drafts of this Article and for providing helpful criticism. 1. See Lovell v. City of Griffin, 303 U.S. 444 (1938) (upholding the right to distribute leaflets). 2. See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) (finding no constitutional right to use peyote as part of a religious ritual). [867]