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15 Ariz. L. Rev. 479 (1973)
The Constitution and Fundamental Rights

handle is hein.journals/arz15 and id is 483 raw text is: THE CONSTITUTION AND FUNDAMENTAL RIGHTS Gary S. Goodpaster* THE QUEST FOR AN UNDERLYING PRINCIPLE Trying to make sense of the United States Supreme Court's han- dling of fundamental rights-seeking an underlying principle, a clearer articulation, a limiting logic-is difficult work. Why, in cases where certain rights are involved, the expression of legislative will re- ceives strict scrutiny, whereas in cases involving other rights, a much looser standard of review is invoked, has defied rational analysis. The difficulty arises because the Court has inadequately justified its treating certain rights as fundamental and has been unable to articulate an un- derlying principle by which to determine whether other rights are fun- damental. In moments of despair, the mind seeks an image to de- scribe its distress. Recall the croquet match in Alice in Wonderland in which the King and Queen of Hearts and Alice participate. The mal- lets are flamingos stood on their heads; the balls, rolled-up hedgehogs; and the wickets, playing card soldiers doubled over. The game, how- ever, has curious features. The mallets will not be rigid; they turn and peer up at the players and fall limp. The hedgehog balls discon- certingly unroll and run away when about to be hit. Equally unnerv- ing, the wickets have the habit of changing their positions on the field in the midst of play. Yet the royalty play the game with great gusto; and perhaps only Alice, born to another world, is not having much fun. Working with due process and equal protection opinions dealing with fundamental rights is like playing that croquet game, using con- cepts that bend or fall limp to chase words that move with a mind of their own into categories which just are not there any more. We quickly learn: this is not the game we thought we were playing. * Professor of Law, University of California, Davis. J.D. 1965, Indiana University.

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