Mar 10, 2023

Abstract

This paper embarks on an excursion through a number of the most vital constitutional rights cases, and other contexts as well, and seeks to show that the recurring judicial attempts to distinguish between core and peripheral areas within any given broad constitutional right are unnecessary and distracting.  Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of any given broad constitutional right. Courts should instead focus–directly or indirectly–on their best assessment of the purposes underlying, and the resulting scope and limits of, the broad constitutional right in question. Courts have, as well, a variety of alternative means of deciding any specific constitutional case that do not rely on inevitably vain attempts to distinguish between core and periphery.

Introduction
   I. Core and Periphery in the Second Amendment Cases
   II.    Core and Periphery in the Free Exercise and Related Cases
   III.  Core and Periphery in the Free Speech Cases
   IV.    Core and Periphery in the Equal Protection Cases
   V. Core and Periphery in Procedural and Substantive Due Process
Conclusion

Introduction

     Most important constitutional rights are said to have a central core area as well as a less central, or peripheral, area.¹ The distinctions that courts draw between core and peripheral areas of broad constitutional rights may affect the degree to which any specific practice is constitutionally protected.² In any event, judicial attempts to distinguish between the core and peripheral areas of constitutional rights seem to be deeply implanted in the law.³

     As it turns out, though, seeking to distinguish core from periphery in constitutional right contexts runs into a variety of severe, and apparently intractable, problems. The nature of these problems, interestingly, varies with the constitutional provision in question. In the end, attempts to distinguish constitutional core and periphery, at best, merely duplicate the logically prior, and more fundamental, inquiries into the purposes, and thus, the scope and limits, of the broad constitutional right in question.

     Thus, in some constitutional contexts, judicial distinctions between core and periphery display undue judicial discretion, lack of constraint on the courts, and sheer judicial arbitrariness⁴ In other areas, courts plainly cannot make up their minds about attempting to make this distinction, due to their concerns over their inability to do so with sufficient neutrality toward the affected parties.⁵ In further areas, basic disputes over core and periphery are plainly unresolvable, as are disputes over the value of protecting what are deemed peripheral rights.⁶ In yet other areas, the idea of core versus periphery has multiple distinct meanings, with the varied distinctions then being taken in unrelated directions.⁷ Elsewhere, the potential value of the core-versus-periphery distinction is substantially diminished by a judicial tendency to assimilate almost all significant interests into the core.⁸  Or else, the distinction between core and periphery is trivialized by according what might be deemed peripheral rights, perhaps quite justifiably, the same status and protection as core rights.⁹

     Ultimately, even at their best, the judicial attempts to distinguish between core and periphery in the various constitutional right contexts needlessly echo the more fundamental debates that take place over the purposes, and thus over the scope and limits, of the constitutional protection of the general kind of right in question.¹⁰ Attempts to distinguish between core and peripheral rights, in whatever constitutional context, are, at best, distracting and unnecessary. These phenomena, and the dubiousness of the enterprise of seeking to distinguish between core and periphery, are documented below. We begin with the Second Amendment case law.

I. Core and Periphery in the Second Amendment Cases

     The leading Second Amendment precedent, District of Columbia v. Heller, relies upon a distinction between the core and the periphery of the broad constitutional right at stake.¹¹ The Heller majority thus refers to "self-defense" as "the central component of the right itself."¹² Otherwise put, Heller rejects the view “that individual self-defense is merely a subsidiary interest" of the overall right to keep and bear arms.¹³ The Court also refers to this activity as "the core lawful purpose"¹⁴ of the Amendment.¹⁵

     The Court thus distinguishes, on some linear two-dimensional, or else on a three-dimensional spatial, metaphor, between core and periphery. The specific terminology used may vary as among core, essential, or central on the one hand, and something like noncore, nonessential, noncentral, subsidiary, secondary, incidental,¹⁶ or peripheral on the other. But some sort of distinction between core and periphery is clearly intended.

     The initial problem is that the core-versus-periphery distinction is used, in the Second Amendment cases and elsewhere, in two separate contexts. Within the protective scope of the broad Second Amendment, some specifiable rights will be recognized, on one ground or another, as core rights. Other rights, within the broad compass of the Second Amendment, will be somehow identified as peripheral rights. But these distinctions, however drawn, are clearly not the same as the distinctions between the core purposes, and the merely peripheral purposes, of recognizing and delimiting the Second Amendment in the first place. The purpose of an amendment, whether core or peripheral, may not match the logic of distinguishing the presumed core and peripheral specific rights recognized under that Amendment.

     Thus, Heller refers to something like self-defense as the core or central element of the broader right protected by the Second Amendment.¹⁷ And, as well, Heller also refers to self-defense as not merely a right, but as the "core lawful purpose" of the Amendment.¹⁸ Remarkably, though, Heller then also identifies the desire to "prevent the elimination of the militia" as "the purpose" for which the Second Amendment was codified.¹⁹ In both of these passages, the Court appears to refer to the core right, or else to the core purpose, in the singular.²⁰

     But the Court also refers to the reasons for valuing the broad right, or the purposes of the Second Amendment, if not for its codification, in the plural.²¹ Thus, the 'purpose' of the Amendment was said to involve not merely the preservation of the militia, but presumably more importantly, self-defense²² and hunting.²³ Heller thus suggests that the purposes underlying a broad constitutional right, and as well the core rights protected by the amendment, may both be plural. Any reference to hunting, though, suggests that not all core rights need also be practically or politically important rights.

     The Court in Heller does not attend specifically to the problem of how to distinguish core from peripheral Second Amendment rights. In particular, history and the presumed public mind at the time of enactment are generally foregrounded.²⁴ Greater attention to distinguishing core rights from peripheral rights was thought to be unnecessary, given the Court's overall approach. Specifically, the Court declined to apply any version of a broad tiered levels of constitutional scrutiny analysis.²⁵ Had the Court chosen to impose one or more familiar levels of constitutional scrutiny in Second Amendment cases, the need to distinguish more and less central rights might have seemed more pressing.

     Instead, the Court emphasized not so much the distinction between core and peripheral rights, as the historical or traditional bounds and limits of the right to keep and bear arms.²⁶ Thus, the Court was largely unconcerned with degrees of stringency in protecting specific arms-related rights. The Court's focus was instead more crucially on whether a particular activity or circumstance fell, at all, within the scope and compass of the Second Amendment. Otherwise put, Heller is more about binary in-or-out determinations than about variable degrees or tiers of protection for particular rights within the scope of the Second Amendment.

     Thus, historically, it has often been permissible for governments to prohibit the carrying of concealed weapons, based not on passing some level of constitutional scrutiny, but as simply not within the broad scope of the contemplated right.²⁷ The Court thus validated the historical prohibition on carrying “dangerous and unusual weapons.”²⁸ Carrying such a weapon would indeed be the literal bearing or carrying an arm, but, if so determined by the courts, simply not at all within the scope and compass of the Second Amendment right. More broadly, the Heller Court declared:

[a]lthough we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.²⁹

The Court's emphasis on the scope and limits of the broad constitutional right reflects the Court's concern for the purposes underlying the constitutional protection of the interests and practices at issue.³⁰ And, in the particular case of the Second Amendment, the judicial concern for purpose is especially heightened by the unusual express prefatory clause that introduces the operative clause.³¹

     As we have seen,³² there is certainly room for reasonable dispute as to the purposes underlying the Second Amendment. The range of this reasonable dispute can then translate into reasonable dispute as to the precise scope and limits of Second Amendment protection. In part, this range of dispute reflects differences in the degree to which courts look to history, tradition, and some sort of original public meaning or intent, as distinct from contemporary policy concerns.³³ So a focus on the partly contested basic purposes underlying the Second Amendment, translated into an understanding of the scope and limits of that Amendment, without further reflection,³⁴ will unavoidably leave some significant indeterminacy in the case outcomes.

     Crucially, though, there has been an epidemic of judicial attempts to supplement, if not entirely bypass, any concern for the purposes of the Second Amendment, and for the scope and limits of the Amendment implied thereby. In particular, many courts have downplayed the significance of any such purpose inquiry. Instead, courts have hastened to emphasize their attempts to distinguish between core and peripheral Second Amendment rights.³⁵ In this, they have been encouraged by some of the language in Heller.³⁶

     As it turns out, however, this judicial concern for the core and periphery of the Second Amendment, at best, retraces the more fundamental logic of the basic purposes underlying the Amendment. At worst, and unfortunately more commonly, this concern for core and periphery multiplies judicial indeterminacies, and even judicial arbitrariness, in deciding the Second Amendment cases.

     In this regard, courts do well when they take seriously the logically prior inquiry into whether a regulation genuinely burdens an activity that falls within the scope of the purposes underlying the Second Amendment.³⁷ Courts may thus sensibly ask whether "the restricted activity falls within the scope of the Second Amendment,"³⁸ or whether the regulation "imposes a burden on conduct falling within the scope of the Second Amendment's guarantee."³⁹

     Some courts, however, then introduce a further unnecessary distraction. Courts have often declared that the regulation in question is unconstitutional if it "amount[s] to a destruction of the Second Amendment right."⁴⁰ The problem here is partly one of ambiguity. No typical regulation, or even combination of regulations, genuinely destroys, in their entirety, any person's Second Amendment rights. Even a regulation prohibiting all firearms in and outside the home allows for the use of all sorts of other weapons for the defense of self and family.⁴¹

     More plausibly, this inquiry might focus on what a court deems the complete destruction, beyond mere regulation, of some more specific Second Amendment right. But there is, simply, no real difference between these two characterizations. Any significant burdening of a person's Second Amendment rights can be fairly described as either a complete destruction or prohibition of some narrowly described right, or else as a mere regulation, short of complete destruction, of a somewhat more broadly described right. Thus, a complete prohibition of pistols in the home is either a complete destruction of a Second Amendment right phrased in just those terms, or else a regulation, however severe, of the somewhat broader right to have pistols and other firearms in the home. Either description is interchangeable with the other.⁴² The judicial hunt for a destruction, as distinct from a partial impairment, of a Second Amendment right is thus pointless.

     The courts typically seek to distinguish between supposedly “core” and supposedly “peripheral” Second Amendment rights.⁴³  Core rights, and peripheral rights as well, presumably fall within the pre-established scope and limits of the Second Amendment, however that scope has been determined. The judicial attempt to distinguish core rights from peripheral rights then results in differing levels, or degrees, of constitutional scrutiny of the regulation at issue.⁴⁴

     Assuming that there is an identifiable core and periphery, one might imagine that burdens on core rights would receive something like either strict or exacting scrutiny,⁴⁵ and that burdens on merely peripheral rights would receive some form of intermediate scrutiny. And the courts have very occasionally taken that path.⁴⁶ Thus, the core versus peripheral status of the particular burdened right would establish the appropriate level of scrutiny.

     But in practice, the courts have typically introduced further complications beyond somehow distinguishing between core and periphery. More ambitiously, courts assert their ability to place any burdened right at its proper place along an imagined gradient, or continuum, whether linear or spatial, ranging from the most central rights, through progressively fewer central rights, to the most peripheral Second Amendment rights.⁴⁷

     In addition to this remarkable vector-constructing ability, courts typically assert their ability to determine the degree of severity of burdening of the right in question.⁴⁸ The degree or weight of burdening of the particular right at stake is thus placed on yet a further continuum ranging from destructive or nearly destructive severity, through substantial burdening, through merely modest, minimal, or insignificant burdening.⁴⁹

     Thus the courts typically hold that the intensity of typically heightened⁵⁰ scrutiny in typical Second Amendment cases will depend on both the degree of proximity of the right to the presumed core of the Amendment, and the degree to which the identified right is burdened.⁵¹ The courts differ, though, on if the burden on core, or core-proximate, rights must be severe, merely substantial, or else somehow disproportionate, before strict scrutiny is deemed appropriate.⁵²

     There is certainly some logic in attempting to develop this remarkably ambitious adjudicative apparatus. It is unlikely that most particular rights falling within the broad scope of the Second Amendment cluster either very close to the presumed core of that Amendment's protections, or else instead at some remote distance from that presumed core. Courts have thus naturally assumed that some cases will fall between these extremes, and have then credited themselves with the ability to place the cases at some proper point on a presumed core-periphery continuum.⁵³ Having made such placement judgments, courts then presume to determine the degree of weightiness of the burden on the right in question.⁵⁴ The next additional complication, then, might be to develop a formula that multiples the degree of centrality of the right by the judicially perceived degree of severity of any burden on the specific right in question.

     On some such basis, courts consign the somewhat fewer disturbing cases to some version of intermediate scrutiny review.⁵⁵ Second Amendment intermediate scrutiny has been said to require the government interest to be "significant, substantial, or important."⁵⁶ Regulations of even supposedly core Second Amendment rights may evoke only intermediate scrutiny if the burden on that core right is deemed to be "modest."⁵⁷

     The degree of required tailoring is similarly indeterminate. It is often said that there must be a "substantial" relationship between the regulatory goal and the scope of the conduct affected.⁵⁸ But the substantial relationship requirement is then often diluted, oddly, to the merely minimum scrutiny requirement of reasonableness, or a "reasonable fit."⁵⁹

     Overall, the core-versus-periphery distinction the Second Amendment context confers a remarkable degree of subjective discretion, and a correspondingly limited degree of constraint, on the courts. Judgments as to core and periphery, near core and near periphery, and certainly placements along that continuum, are largely unconstrained. Comparisons of modern weapons and their popularity with historic weapons are similarly open to judicial discretion. And the “weight” or “severity” of any regulatory burden will typically depend on how the court chooses to characterize the burden in question.⁶⁰

     What, then, would be the genuine cost, in terms either of defensible constitutional values or the public safety and security, if the Second Amendment core-versus-periphery distinction, and all its complications, were simply set aside?  In truth, much of the necessary adjudicative work can be done, and is more appropriately done, at Heller's initial stage reflecting the presumed purposes, scope, limits, and categorical exclusions of the Amendment as a whole.⁶¹ Many claims can be denied as outside the scope and compass of the Amendment, however determined.⁶² Doubtless there will be marginal and therefore difficult cases on any such purpose-driven approach. Further tests, other than core versus periphery, may then be invoked. But the cost of getting a case wrong at the outer boundaries of the Amendment is typically constitutionally minimal.

     It is likely that the judicial inquiry into core versus peripheral rights may reflect some considerations already addressed in the prior inquiry into the purposive scope and limits of the Amendment.⁶³ But in such cases, any judicial concern for core versus peripheral rights, at best, unnecessarily duplicates those prior, more properly focused, purpose and scope inquiries.

     Any remaining substantial injustices can be mitigated by asking, as in some First Amendment cases,⁶⁴ whether the regulation in question does, or does not, leave the regulated party with adequate alternative means of fulfilling any relevant purpose of the Second Amendment, including personal safety. In fact, some Second Amendment cases have sensibly pursued this line of inquiry.⁶⁵ As long as appropriate alternative means of, say, personal defense remain realistically available to the claimant, no inquiry into core and periphery, and no form of heightened constitutional scrutiny of the regulation in question need be imposed.⁶⁶ And if all else fails, there remain balancing tests not relying on any core-versus-periphery distinction.

II. Core and Periphery in the Free Exercise and Related Cases

     Consider next the distinction between core and periphery in Free Exercise of Religion cases, and under the major religious liberty statutes. The courts and commentators tend to distrust this distinction, while at the same being unable to consistently resist its appeal. Both the distrust of and the attraction toward the core-versus-periphery distinction in the religious context are entirely understandable. But as in other constitutional contexts, the core-versus-periphery distinction turns out to at best perform no indispensable function in the religious freedom cases.

     From the standpoint of a metaphorical territorial defense, it is natural to distinguish between something akin to an indispensable citadel and a less essential hinterland. Thus, some have historically envisioned a "natural right of religious freedom . . . with a core untouchable by positive law, and a periphery that could be policed and regulated by the legislature in furtherance of the common good."⁶⁷ Distinctions between core and peripheral beliefs or practices may be clearly drawn by the religious entities themselves,⁶⁸ and in some cases can be reasonably discerned by the courts.⁶⁹

     More generically, it has been argued that "[f]orming in groups to serve others is central to religion and therefore to the free exercise of religion; it lies at the core, not the periphery."⁷⁰ In the religious freedom context, identifiable core religious practices will normally also be practically important practices from the standpoint of the religious claimant.⁷¹

     Typically, though, it is said that in the religious freedom context, governments should not attempt to distinguish core and peripheral religious practices.⁷² This conclusion reflects the belief that "civil magistrates are not competent to decide which practices are at the 'core' of a given religion and which are peripheral."⁷³

     Thus, in the Free Exercise context, the Court has declared that "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith."⁷⁴ By way of  comparison, "[i]t is no more appropriate for judges to determine the 'centrality' of religious beliefs . . . than it would be for them to determine the 'importance' of ideas . . . in the free speech field."⁷⁵

     There are similar sentiments abound in the federal statutory religious context as well. In a notable opinion, then-Circuit Judge Neil Gorsuch emphasized the intent of Congress in the Religious Land Use and Rights of Institutionalized Persons Act (RLUIPA) to protect religious practices, "whether or not compelled by, or central to a system of religious belief."⁷⁶

     Judge Gorsuch cited not only a lack of judicial expertise⁷⁷ but the risk of bias in favor of religious compelled practices.⁷⁸ The thought is that different religions may have different ratios of their respective core practices to their periphery  practices. Perhaps one religion might, in the extreme, be perceived as all core. Judge Gorsuch might have seen such a judicial perception as producing an unfair bias in favor of the “all-core” religion.⁷⁹ One might equally argue, though, that different judicial treatment may indeed be appropriate for all core as distinct from “minimal core” religions, or that these opposing intuitions as to fairness cancel one another out.

     And indeed, courts have emphasized that under RLUIPA, religious exercise may be protected regardless of whether that exercise is central to any religious belief system.⁸⁰ The statute itself specifies that noncentral or noncore religious practices may indeed be protected.⁸¹ Some of the courts, though, have extended the import of this statutory language.⁸² The RLUIPA section involved is agnostic as to the possibility of, or the fairness of judicial inquiry into, the core or peripheral status of a religious practice.⁸³

     But some courts, oddly, read the “whether or not central” language to, of its own force, prohibit any judicial inquiry into centrality of religious belief.⁸⁴ Thus the Ninth Circuit, for example, has announced that "[b]y the plain language of RLUIPA, we are forbidden from evaluating the centrality of a religious practice or belief."⁸⁵ Thus debarred, the courts are left only with an occasionally dubious inquiry into the mere sincerity of the professed religious belief.⁸⁶

     There can, however, be a certain logic to inquiring into the centrality or peripherality of a religious belief.⁸⁷ What understandably motivates such inquiries is the sense that religious freedom claims require a showing that the regulatory burden on religion is substantial, or at the very least, not de minimis.⁸⁸

     From there, it is sometimes assumed that a genuinely substantial burden on religion must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion.⁸⁹

     Determining whether a burden on religious practices should count as substantial may be both essential⁹⁰ and unusually complex.⁹¹ Some may equate insubstantial burdens with de minimis, or trivial, burdens.⁹² What counts as substantial varies according to the legal context.⁹³ And burdens in the religious freedom area may be substantial while at the same time being abstract, ineffable, and in some measure beyond articulate verbal description.

     Even where a religious claimant must show a substantial injury, it will typically be possible, as in other constitutional contexts, to bypass any attempted judicial inquiry into core versus peripheral religious practices. Core-versus-periphery inquiries aside, a legally required violation of what the religious claimant takes to be a binding religious commandment will typically be a substantial burden. A legal requirement that would increase one's perceived chances of eternal perdition will normally be a substantial burden, again without inquiring into core and periphery. A legal prohibition of performing on Sundays some activity the claimant believes can be performed on any day of the week will typically not be a substantial burden.⁹⁴

     As well, where the question of the substantiality of the burden is close, it is unlikely that inquiring into the core or periphery status of a belief will be of distinctive help, beyond further reflection upon the claimant's sincerity and the circumstances as the claimant sees them.⁹⁵ No inquiry can prevent close or difficult cases. And any error in finding or not finding a substantial religious burden is harmless in any case involving a sufficient government interest that is pursued in a sufficiently tailored fashion.⁹⁶ Even if the courts could validly and reliably distinguish core from peripheral religious beliefs, there would then still be the problem of nonsubstantial burdens on core beliefs.⁹⁷ And finally, no core-versus-periphery test can be religiously neutral. Religions themselves may or may not distinguish between core and peripheral beliefs. For some religions, all articulated beliefs may be core beliefs,⁹⁸ or more interestingly, some religions may take their beliefs to amount to a network of not merely interwoven, but mutually constitutive, beliefs.

III. Core and Periphery in the Free Speech Cases

     It is widely believed that the constitutional right to freedom of speech has a core and a periphery. This belief is held by the courts⁹⁹ themselves and by the commentators.¹⁰⁰ Thus

it is said that "[o]ne of the major features of the landscape of modern First Amendment law is the existence of categories of speech deemed 'less central' or peripheral to the values of free speech that are left unprotected or less protected."¹⁰¹ Even if we think of speech as in a sense already distinctly protected,¹⁰² the law still "distinguishes between the core zone of protected speech–where safeguards are at their height–and the periphery."¹⁰³ And it is then natural to say that "speech that lies at the periphery of constitutional concern may be regulated on a lesser showing of harm than speech that lies at the core."¹⁰⁴

     Seeking to distinguish core and periphery in free speech contexts, as in other constitutional right contexts,¹⁰⁵ results in substantial conflict and controversy.¹⁰⁶ The obvious first move is to isolate speech that can be classified as relevantly political, and to assign core status to that speech.¹⁰⁷ It is a further step, certainly, to then expand the concern for the political to encompass all public issues,¹⁰⁸ and all "matters of public concern."¹⁰⁹ Does a concern for “self-government” exhaust the scope of the political?¹¹⁰ Where should the spending of money on political candidates be placed on any core-versus-periphery axis?¹¹¹ Where does private for-profit and other corporate speech on political matters fall on such an axis?¹¹² Does Nazi Party political speech lie at the core?¹¹³ How about evident hate speech more generally?¹¹⁴ Or dissenting political speech in particular, whatever its nature or political valence?¹¹⁵

     The crucial question, though, then becomes one of what, if anything, beyond the arguably political, belongs at the core of freedom of speech. Not all picketing, certainly, is political speech.¹¹⁶  Does the filing of any complaint in court amount to core speech?¹¹⁷  What about an argument that does not amount to, or even seek to amount to, a "reasoned" argument?¹¹⁸  In an era of remarkably distorted news and other social communications media, should we still conclude that "th[e] unfettered flow of information is central to freedom of speech?"¹¹⁹

     Should commercial speech, say, occupy a place at or near the free speech core?¹²⁰ Commercial speech is often consigned to the periphery,¹²¹ perhaps along with pornography.¹²² But beyond the evolving case law itself,¹²³  it has been argued that "the conclusion that commercial speech lies outside the 'core' of first amendment protection appears unwarranted."¹²⁴ Here, as elsewhere, perceptions of core and of periphery may shift over time.¹²⁵

     Even if we can assign core and peripheral status to the various kinds of speech, we then face problems of how to relate the judicial tests for core and for peripheral speech. Suppose we want to most effectively protect what we deem to be core speech. This would be on the assumption that the core, most central, or the clearest paradigm instances of speech will also be the most constitutionally valuable speech. But the desire to safeguard core speech cannot tell us how much constitutional protection to extend to peripheral speech.

     The optimal protection of core speech rights is instead partly a matter of real-world consequences. And the relevant consequences may be difficult to discern, let alone predict. We might think of the core and periphery of speech as analogous to a vital citadel and a less valuable hinterland, and then reflect upon the defense, to one degree or another, of both.¹²⁶ Our first impulse might well be to imagine that we can best secure core speech by expanding, and strengthening, constitutional protection for peripheral speech.¹²⁷ The more that free speech battles are focused on peripheral cases, or the hinterlands of speech, the safer the core or citadel, at least on that view.

     But then, it may seem at least equally plausible that excessive protection for merely peripheral speech may ultimately tend to dilute, compromise, or call into question stringent protection for presumed core speech.¹²⁸ This might be especially plausible if the Court devotes substantial attention¹²⁹ to free speech claims that could reasonably be viewed as involving substantial social costs. There is, on this latter view, a risk of developing an ordinary cost benefit mentality with respect to speech cases more generally.

     In this regard, consider how some of the Court's recent speech cases might appear to many reasonable observers. The Court has, for example, struck down restrictions on the dissemination of videos devoted to the torture of animals.¹³⁰  The Court has struck down restrictions on access by minors to violent video games that are judicially found to lack serious political, artistic, literary, or scientific value for minors.¹³¹  The Court has struck down prohibitions on intentionally dishonest claims to have been awarded the Congressional Medal of Honor and other decorations.¹³² And the Court has most recently barred public school discipline of dubious personally focused speech without obvious public interest relevance.¹³³

     In the last case, the Court recognized the arguable constitutional triviality of the speech at issue.¹³⁴ The Court concluded, though, that "sometimes it is necessary to protect the superfluous in order to preserve the necessary."¹³⁵ The unanswered question, though, is whether protecting what may be perceived as trivial, or in other cases as even socially damaging behavior, tends over time to strengthen, or else to erode, strong protection for core, but controversial, speech.

     As elsewhere, then, the attempt to distinguish core from peripheral speech, at best, reiterates preexisting and more foundational controversies. Worse, the largely unresolved conflicts over distinguishing core from periphery have generated distracting controversies and complications of their own.

     Rather than focusing, largely fruitlessly, on disputes over core and peripheral speech, the courts could simplify matters by attending to questions as to what counts as speech for constitutional purposes in the first place. The Supreme Court has identified a number of categories of more or less literal speech that are deemed outside the scope of speech for constitutional purposes.¹³⁶ These determinations as to the scope of speech for First Amendment purposes are thus prior to any later judgments as to core or peripheral status.

     Thus, the Court has held, rightly or wrongly, that at least some instances of literal speech are not merely peripheral, or else of constitutionally low value, but entirely outside the scope of the First Amendment. These categories are thought to include direct incitement to illegality; obscenity; some forms of defamation; speech that is integral to crime; fighting words; child pornography; fraud; true threats; and perjury.¹³⁷ Whether justified or not, these exclusions from the scope and compass of speech for constitutional purposes do useful work without undertaking the further dubious task of somehow placing speech instances, or speech categories, at one point or another on some axis or axes of core and peripheral speech.

     With or without any such spectrum of supposed core and peripheral speech, there will of course be the need to somehow trade off the value of protecting speech against the various sorts of harms that speech can impose. But no sliding scale of core and peripheral speech can tell us more or less how to adjudicate such inevitable value conflicts without controversy.

     Instead, the ultimate guide to adjudicating such conflicts should be whatever we take to be our best sense of our basic reasons, purposes, and goals in singling out speech for constitutional protection in the first place. At this more fundamental level, there is admittedly no detailed consensus. But there is a useful clustering of sentiment. There is certainly no point in struggling with any real disagreement as to the scope of speech at this fundamental level, and then largely repeating such disputes in the form of debates over core and peripheral speech.

     In concrete terms, there is at least a very rough consensus with respect to the basic purposes of constitutionally protecting speech. Emphases and formulations vary, certainly, but there is obvious logic in encouraging tolerance;¹³⁸ in checking governmental abuses;¹³⁹ in furthering democratic self-government more broadly;¹⁴⁰ in the promotion of self-realization or self-fulfillment;¹⁴¹ and in the optimal social pursuit of truth.¹⁴² In general, the courts are better advised to do their excluding and balancing with an eye, directly or indirectly, toward these fundamental purposes. This approach thus allows for a bypass of attempts to craft and utilize axes of core and peripheral speech. Such axes at best reiterate, perhaps in distorted fashion, disputes as to the basic reasons for protecting speech in the first place, and how to use those basic reasons in resolving unavoidable value conflicts. And the courts can again, as elsewhere, ask whether regulated speakers still retain constitutionally satisfactory ways to communicate their messages.

IV. Core and Periphery in the Equal Protection Cases

     The ideas of core and periphery also pervade the equal protection case law. Unfortunately, this distinction in the equal protection context is not used in any single, unequivocal sense. Instead, “core,” and “periphery” are in the equal protection context, deployed ambiguously, with unnecessary dispute and confusions being the predictable result.

     In the equal protection cases, “core” is often used in the context of abstract concepts of equal and unequal treatment. Thus, it is said that at its core, “[t]he Equal Protection Clause . . . keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike."¹⁴³ In this sense, the core of the Equal Protection Clause simply reiterates the most fundamental and abstract principle of Aristotelian justice.¹⁴⁴

     In condensing this abstract formula, the Court has referred to "[o]ur traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications."¹⁴⁵ But this would mean, oddly, that the gravest equal protection cases in which the government has any nonarbitrary reason for its policy, actually lie outside the equal protection core.

     And then there are further problems. Could the intentional, as opposed to unintentional, character of an arbitrary classification make any difference as to core status?¹⁴⁶ The Court has arguably suggested so in declaring that "[t]he purpose of the equal protection clause . . . is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination."¹⁴⁷ And does the underlying importance or triviality of the arbitrary classification have nothing to do with whether that classification is at or near the core of the Equal Protection Clause?¹⁴⁸ Can a trifling matter really

lie at a constitutional core?¹⁴⁹ Either way, our history suggests that the core of equal protection is, at the very least, not exhausted by such abstract, disembodied considerations. Along another, more substantively defined axis, we might naturally think instead of race, in particular, as at the core of the Equal Protection Clause.

     Thus, it is often said that the "core guarantee of equal protection [requires] ensuring citizens that their State will not discriminate on account of race."¹⁵⁰ But this substantive focus immediately provokes its own questions. Is it really that the equal protection rights of citizens, but not those of aliens and other noncitizens, are at the core of equal protection?¹⁵¹ Or are alienage and national origin discrimination close to, if not at, the core of equal protection?¹⁵² Or should the core of the Equal Protection Clause be understood to encompass some number of other invidious classifications?¹⁵³

     But there are important unresolved complications even within the realm of race. The Court sometimes refers to explicit distinctions on the basis of race, as distinct from other forms of racial classification.¹⁵⁴ Does this matter for purposes of distinguishing an equal protection core? And is racial discrimination against dominant groups, including Caucasians, as close to the core of equal protection as discrimination against African Americans?¹⁵⁵

     There is, after all, widely recognized sentiment to the contrary. The Slaughter-House Cases in particular did not view the Equal Protection Clause's core as itself race-neutral.¹⁵⁶ Instead, the Court stated that the "one pervading purpose"¹⁵⁷ of the Civil War Amendments was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."¹⁵⁸ Denial of equal protection on other bases might also be legally actionable, but not within the designated core.¹⁵⁹

     And then there is the separate sense that the core of an equal protection violation consists in relative, or comparative, differences in treatment.¹⁶⁰ But in some practically important equal protection contexts, the Court has dismissed concern for relative disparities—for literal inequalities—in favor of a concern merely for the presence or absence of some supposedly absolute minimum quantum of state provision.¹⁶¹ There is no obvious judicial resolution of these opposing approaches.

     Finally, there are cases that seem to treat the core of equal protection as equivalent to what we might think of as the most elemental equal protection violation cases. Along these lines, Judge Posner argues that "the core violation of the equal protection clause is indeed the selective withdrawal of police protection from a disfavored group."¹⁶² From a different angle, it has been argued that "the suppression of private violence [was] the core concern of the Equal Protection Clause."¹⁶³

     As elsewhere, attempts to distinguish core and periphery in the equal protection context, at best, merely reinscribe the questions we must more appropriately ask in determining the scope and meaning of the Clause itself. The difference between core and periphery in most other constitutional right contexts and in the context of equal protection is the remarkable number and variety of fundamentally different perspectives on display in the latter context. Particularly in the equal protection context, core and periphery are, as we have seen, remarkably equivocal. And then, along each of the diverging core-periphery axes identified above, what counts as core is deeply contested. Of course, we may well disagree about the initial scope and basic purposes of the equal protection guarantee. But in this respect, any further attempts to distinguish core and periphery merely add redundancy and further confusion.

V. Core and Periphery in Procedural and Substantive Due Process

        Attempts to distinguish between core and merely peripheral due process rights, again, at best, merely reinscribe the reasons for singling out, circumscribing, and protecting due process rights in the first place. We can sensibly say that "[n]atural liberty and traditional property were the traditional core of procedural-due-process-protected interests," with their deprivation then implicating the value of procedural fairness.¹⁶⁴ Liberty might be said to be at the core of substantive as well as procedural due process.¹⁶⁵ More specifically, perhaps, one might also identify litigant autonomy as a core value or as a "core element" of procedural due process. ¹⁶⁶ And then, one might also think some conception of dignity is at the core of due process rights.¹⁶⁷

     Beyond these considerations, one might then say that procedural due process shares with equal protection¹⁶⁸ the core aim of the "protection of the individual against arbitrary action of government."¹⁶⁹ Colloquially, we might say that "[a]t the historical core of procedural due process is the idea that parties have a right to "'a day in court.'"¹⁷⁰ At a minimum, this core requires "notice and an opportunity to be heard" at a meaningful time.¹⁷¹ The point of recognizing this as the core of due process is that appropriate procedural safeguards may prevent infringement of constitutional rights.¹⁷²

     The core of procedural due process is then said more concretely to include "the accuracy of the factfinding process and the impartiality of the decisionmaker."¹⁷³ To these core elements, we could add a written statement of the decision and the availability of appellate review.¹⁷⁴ As well, core procedural due process in particular is said to require that the written decision contain "a fully-articulated rationale."¹⁷⁵ The core of procedural due process is thought as well to encompass appointed counsel for indigent criminal defendants.¹⁷⁶ And the due process core may also be said to bar generalized unfairness in the administration of government benefits, as well as penalties.¹⁷⁷

     More generally, "the core of procedural due process is some combination of fairness and reasonableness that requires a balancing between the interests of the state and the individual."¹⁷⁸ And with this, and all of the more specific core requirements specified immediately above, it is difficult to disagree.

     The problem for our purposes is, unlike in the equal protection context,¹⁷⁹ not one of the multiplicity of meanings of core and periphery. Each of the above specifications of one or more core elements of procedural due process seems a reasonable and mere friendly amendment, by way of a fully compatible addition, to all of the rest. Each of the above considerations can easily be deemed core, as distinct from peripheral, elements of procedural due process.

     But this means that to an exceptional degree, beyond that of other constitutional right contexts, most of what the courts might dispute about is already safely within the core of procedural due process, as opposed to being consigned to the merely core-adjacent, or to the periphery. The core-versus-periphery distinction thus does relatively little interesting adjudicative work in the procedural due process context.

     Certainly, there are contested issues of procedural due process. The provision of legal counsel as a matter of right could certainly be expanded to various civil contexts.¹⁸⁰ The scope and limits of procedural due process rights on public university campuses bears reexamination.¹⁸¹ But the ratio of what is considered core to what is considered periphery in the most significant due process contexts is relatively high.

     To change the metaphor, the procedural due process classification amounts to mostly banana, and relatively little peel. Or at least, more so than is true of other constitutional rights, including freedom of speech.¹⁸² This means that less will typically be at stake in any core-versus-periphery disputes over procedural due process rights, and that core-versus-periphery disputes will thus tend to be both relatively rare and relatively insignificant. And certainly, there are no grounds for supposing that trying to distinguish core from peripheral due process rights affords significant advantages over the logically prior inquiry into the underlying purposes of scope and limits of a constitutional right to procedural due process in the first place. At worst, and as in our other constitutional contexts, courts again have the option of employing balancing tests that are independent of any reliance on notions of core versus periphery.

     In a sense, matters are dramatically different when we turn from procedural due process to substantive due process. Consider the crucial substantive due process case of Griswold v. Connecticut.¹⁸³ First, one might see Griswold as marking a major transition within the realm of substantive due process. In Griswold, privacy supplants, at the core, earlier and now peripheralized concerns for economic or contractual substantive due process.¹⁸⁴

     But for our purposes, Griswold in a sense undermines the significance of the distinction between constitutional core and constitutional periphery. In particular, Griswold diminishes the importance of the explicit textual embodiment, or the literal mention, of a constitutional right. One could certainly say that textual rights are generally core rights, whereas rights not textually referred to are usually peripheral in character. But Griswold stands for the idea that rights that are outside, or spatially between, express rights can be just as constitutionally significant and as stringently protected as enumerated rights.¹⁸⁵

     That is, Griswold establishes that a right, in this case to marital privacy, can take on the constitutional status of a core constitutional right, if not an even greater status,¹⁸⁶ if it can be seen as appropriately positioned with respect to enumerated rights. This is the import of Griswold's famed references to “penumbras,” or half-lights, cast by radiating “emanations” from enumerated constitutional rights.¹⁸⁷

     Thus Justice Douglas famously writes in Griswold that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”¹⁸⁸ Griswold involved a privacy right, where that right was given substance by the joint, apparently overlapping, and thus sufficiently illuminating emanations of "several fundamental constitutional guarantees."¹⁸⁹ The "right of marital privacy" at issue was thought to lie "within the protected penumbra of specific guarantees of the Bill of Rights."¹⁹⁰

     To the extent that penumbral, and in that sense peripheral, rights are protected at least as stringently as enumerated or core rights, Griswold dramatically reduces the significance of any attempt to distinguish between core and periphery. The broad penumbral privacy right recognized in Griswold would then then be said to have its own core and its own periphery.¹⁹¹ The question of which rights fall within the Griswold privacy core, and which within the Griswold privacy periphery, is of course notoriously contested.¹⁹² And there is again no reason why the important unresolved issues are better addressed by vainly trying to distinguish between core and peripheral privacy rights than by taking a step back to survey the broader constitutional landscape, and the basic constitutional purposes and interests at stake.¹⁹³

Conclusion                                                                                                                

     This excursion through a number of the most vital constitutional rights cases, and other contexts as well, has sought to show that the recurring judicial attempts to distinguish between core and peripheral areas within a given broad constitutional right are unnecessary and distracting. Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of a given broad constitutional right. Courts should instead focus, directly or indirectly, on their best assessment of the purposes underlying, and the resulting scope and limits of, the broad constitutional right in question. Courts have, as well, a variety of alternative means of deciding any specific constitutional case that do not rely on any attempt to distinguish between core and periphery.

* Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.