THE HETEROGENEITY OF RIGHTS

Abstract

If there is a constitutional right to R, and a law L by its terms prohibits R, L cannot be validly applied to some person P’s exercise of R. For at least two reasons, however, most cases involving claims of constitutional right are substantially more difficult than this schematic example. First, lawmakers rarely act so brashly as to proscribe rights in so many words.But see Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (invalidating a ban on all “First Amendment activities” at the main terminal of the Los Angeles International Airport). Second, even facially invalid laws typically include within their sweep much unprotected activity.For example, a law forbidding “prayers or offerings to any god but the Christian God” prohibits, inter alia, involuntary human sacrifice to the Aztec god Huehueteotl, see Johanna Broda et al., THE GREAT TEMPLEOF TENOCHTITLAN 68–70 (1988), which ought to be unprotected even under the broadest reading of the Free Exercise Clause.