INCIDENTAL BURDENS ON FUNDAMENTAL RIGHTS

Nearly every governmental action has the incidental effect of burdenin g some fundamental constitutional right. In this Article, Professor Do rf argues that constitutional text, history, end structure, as well as normative considerations, require that courts treat these burdens ser iously. How, though, can government recognize these incidental burdens without rendering itself powerless to achieve its legitimate ends? Pr ofessor Dorf analyzes the Supreme Court's approach to incidental burde ns on free speech, free exercise of religion, and privacy rights. In t hese areas, he discerns a tendency to apply close scrutiny to incident al burdens that eve ''substantial.'' He then argues that the nature of the impinged right should also influence the Court's approach to an i ncidental burden. Finally, Professor Dorf reexamines common understand ings of the distinction between direct and incidental burdens. He cont ends that his Proposed framework ought to be applied not only to incid ental burdens, but also to direct burdens on conduct facilitating the exercise of a fundamental right. Burdens on equality norms, however, n eed not be substantial to elicit close scrutiny.