Some thoughts on the "undue burden" concept

Volokh, Eugene VOLOKH at
Wed Mar 3 14:16:12 PST 2010

            It seems to me that the Casey version of the test doesn't contemplate any narrow tailoring inquiry or necessity inquiry.  Rather,

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

The focus is just on the magnitude (actual and intended) of the burden on the right.  My sense is that making "undue burden" into something like "intermediate scrutiny," with the possibility that even substantial obstacles - down to total bans - may be constitutional because they are "due" is likely to cause confusion, and to make the test very different from the Casey test.  If one wants to argue for a different standard, that's fine; consider, for instance, Zablocki v. Redhail's articulation of the unenumerated rights test as to the right to marry:

When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.

That sounds like a test that contains both a burden threshold ("significantly interferes") and a possibility that even substantial burdens can be justified under some heightened scrutiny ("closely tailored to effectuate" "sufficiently important state interests").  I think that test won't work well for the right to bear arms, for reasons I discussed in Part I.C of .  But at least it would clearly articulate the steps of the inquiry, rather than using the "undue burden" formulation, which on its face is more opaque and which, as defined in Casey, is quite different from the Zablocki test.


From: Humbach, Prof. John A. [mailto:jhumbach at]
Sent: Wednesday, March 03, 2010 1:52 PM
To: Volokh, Eugene; 'conlawprof at'
Subject: Some thoughts on the "undue burden" concept

With respect to burdens, it appears to me that, in the First Amendment context, the criterion of "undueness" is built into the basic tests of O'Brien (incidental effects), time/place/manner and commercial speech, which together comprise the occasions for so-called "intermediate scrutiny." Specifically, the "undueness" criterion is expressed in the requirements, respectively, that a challenged law's burden on speech be:

* "no greater than essential" to further the governmental interest
* "narrowly tailored" to serve a significant governmental interest
* "no more extensive than necessary" to serve the governmental interest

What these 3 requirements all say, in effect, is that a burden on speech is "undue" if it is not commensurate with the important governmental interest that it serves. In other words, the "undueness" of a burden on speech is not a function of whether the burden in a big deal to those who are subject to it but, rather, a function of its remedial proportionality. I'm not sure, however, that this is the general understanding (or meaning) of "undue burden" as used in Casey.

At any rate, in the First Amendment context if the burden of a law (not aimed at content) is "undue," i.e., if the challenged law does not meet the above requirements, then the law is invalid. I'm guessing that the same might apply in the Second Amendment context, as well.

This may not be "a sound way of interpreting a constitutional provision," but it has worked for many years to run the non-obscene "adult" theaters and nude dancing out of town, despite their being "protected" speech. It might work on guns, as well.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at
personal homepage:
From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 03, 2010 12:53 PM
To: 'conlawprof at'
Subject: RE: Undue Burden standard for guns?

            I'm actually a supporter of a "substantial burden" standard for gun regulations, see; and state constitutional right to bear arms decisions generally tend to take more or less this view (though of course the pattern is far from solid).  Part of what influences me on this is precisely that I think the "substantial burden" test is an important component of constitutional adjudication more generally.  As Alan Brownstein discussed in an excellent article on the subject, the "substantial burden" inquiry -- at least as one element of a test -- appears not just in Casey, but also in Sherbert/Yoder-era Free Exercise Clause cases, in the "ample alternative channels" prong of the test for content-neutral time/place/manner restrictions, in the right to marry cases, in the First Amendment election regulations cases, and elsewhere.  And this makes sense, both given 19th-century caselaw, which generally distinguished modest regulations from prohibitions or very severe regulations, and the text of the various provisions which prohibit "abridging" or "infring[ing]" rights; it's not clear that all regulations amount to abridgements or infringements.

            As to Scalia's condemnation of the "undue burden" test in Casey, it seems to me to mostly reflect the view that the underlying right made no sense, and that a substantial burden test makes no sense in light of that right.  I do think that he at times seems to condemn the threshold more broadly:

I agree, indeed I have forcefully urged, that a law of general applicability which places only an incidental burden on a fundamental right does not infringe that right, but that principle does not establish the quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found to violate the Constitution unless it imposes an "undue burden." It is that, of course, which is at issue here: Pennsylvania has consciously and directly regulated conduct that our cases have held is constitutionally protected. The appropriate analogy, therefore, is that of a state law requiring purchasers of religious books to endure a 24-hour waiting period, or to pay a nominal additional tax of 1¢. The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise of First Amendment rights. The "undue burden" standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created specially for this case, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the "central holding in Roe."

Yet I think that here he is just mistaken:  Content-neutral speech restrictions, which nonetheless directly regulate the fundamental right to free speech, are indeed subject to weak scrutiny (a weak form of intermediate scrutiny) unless they fail to leave open ample alternative channels for speech, which is another way of saying that they are subject to weak scrutiny if they don't pose a substantial obstacle to communication.  The same is, I suspect, true for other regulations of fundamental rights, for instance certain procedural requirements for the exercise of procedural rights.  A requirement that someone pay a modest fee to get a civil jury trial would be quite constitutional, I think, and is (to my knowledge) routinely upheld.  Likewise with a requirement that one pay a fee to file a lawsuit, which is a burden (but not an unconstitutionally substantial burden) on one's Petition Clause rights.  And of course modest fees for content-neutral permits are also constitutional, as are content-neutral requirements that one generally ask for a parade permit some number of days before the parade.  None of this is terribly controversial.

            To be sure, even modest burdens are unconstitutional when they implicate what the Court sees as equality rights, such as the right to be free from restrictions that single out religious practice, or the right to be free from content-based speech restrictions, or for that matter the right to be free from race classifications.  That is what's doing the work in Justice Scalia's "religious books" requirements.  But this doesn't apply to many substantive rights provisions.

            So I hope that Justice Scalia won't feel bound by the overstatements - overstatements that dealt with other constitutional provisions, about which I suspect he didn't think as closely as he had about the abortion right that was directly at issue in Casey - in his Casey dissent, especially since the statements are indeed clearly and uncontroversially overstatements.


Eric Segall writes:


> > How can Scalia adopt an "undue burden" standard for the Second

> > Amendment after his rant in Casey about the standard? Because one is

> > "textual" and one is "not?" Not convincing . . . .

> >

> > Eric
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