Fundamental rights

Notion that a select number of constitutional rights are so essential to American traditions of liberty and justice that they deserve special recognition and protection.

When making his proposal for a Bill of RightsBill of Rights in 1789, James MadisonMadison, James;and Bill of Rights[Bill of rights] did not declare that all of his suggested amendments were of equal significance. Indeed, he wrote of his special concern for his rejected proposal that would have prohibited the states from violating “the equal rights of conscience, nor the freedom of speech, or of the press, or the trial by jury in criminal cases.” He clearly considered these particular rights to be more basic than some of the other provisions, such as those enumerated in the Third and Seventh Amendments.

At the beginning of the American Revolution, Patrick Henry delivered a speech before the Virginia Assembly containing the famous phrase, “Give me liberty, or give me death!” As an expression of one of the most fundamental rights, that line became a war cry of the Revolution.

(Library of Congress)

The term “fundamental rights” entered American jurisprudence in Justice Bushrod Washington’sWashington, Bushrod;on fundamental rights[fundamental rights] circuit court opinion in Corfield v. Coryell[c]Corfield v. Coryell (1823), which focused on Article IV’s entitlement of “privileges and immunities of Citizens in the several states.” Influenced by the natural law tradition, Washington wrote that this entitlement included a few rights that were “in their very nature, fundamental; which belong of right, to the citizens of all free governments.” While he wrote that it was impossible to list all fundamental rights, he gave a few examples, such as the rights to own property and toTravel, right to travel through the states.

John BinghamBingham, John and the other framers of the Fourteenth Amendment often quoted Corfield when discussing the privileges or immunities clause which they inserted into the new amendment. Although it is doubtful that most framers expected the clause to make each and every provision in the Bill of Rights binding on the states, many of them suggested that it would prohibit the states from violating the more fundamental of these rights, such as the First Amendment’s guarantee of free speech. The Supreme Court, however, gave an extremely restrictive interpretation to the clause in the Slaughterhouse Cases[c]Slaughterhouse Cases (1873), an interpretation that has never been directly overturned.

During the years from 1897 to 1937, the majority of the justices consistently held that the freedom to enter into contracts was one of the fundamental rights guaranteed by the Fifth and Fourteenth Amendments. They based this right on a substantive interpretation of the due process clause, as in Adkins v. Children’s Hospital[c]Adkins v. Children’s Hospital[Adkins v. Childrens Hospital] (1923), which overturned a federal minimum wage requirement as an unconstitutional infringement on a protected liberty. Beginning in 1937, however, a majority of the justices accepted that government might restrict the freedom of contract in order to promote reasonable public interests. At the same time, liberal members of the Court became increasingly concerned for the civil liberties enumerated in the first eight amendments. For a number of years, the judges argued about which, if any, of these rights should be incorporated into the Fourteenth Amendment, thus making them applicable to the states. In a seminal case, Palko v. Connecticut[c]Palko v. Connecticut (1937), Justice Benjamin CardozoCardozo, Benjamin;Palko v. Connecticut argued for the incorporation of those rights that were “fundamental,” either because they were “of the very essence of a scheme of ordered liberty,” or because they were “principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” In subsequent years, the majority of the justices would endorse some variation of Cardozo’s approach to incorporation.

A related question was whether the Court should use the same standards of scrutiny when considering fundamental rights as when considering less essential rights. In the famous Footnote Four“Footnote four”[footnote four](Stone) of United States v. Carolene Products Co.[c]Carolene Products Co., United States v. (1938), Justice Harlan Fiske StoneStone, Harlan Fiske;“footnote four”[footnote four] suggested that it might be appropriate to utilize a heightened level of scrutiny when examining three kinds of policies: those that appear to contradict explicit constitutional prohibitions; those that appear to interfere with political processes, such as limitations on the right to vote; and those that are discriminatory against racial or religious minorities. Years later, the footnote’s advocacy of a double standard would provide ammunition for proponents of liberal judicial activism.

During World War II, beginning with Murdock v. Pennsylvania[c]Murdock v. Pennsylvania (1943), the Court’s majority accepted the doctrine of “preferred freedoms,” extending special judicial protections for the freedoms of the First Amendment. Similarly, in Korematsu v. United States[c]Korematsu v. United States (1944), in approving Japanese internment, the majority opinion declared that public policies discriminating on the basis of race were “immediately suspect,” therefore requiring “the most rigid scrutiny.” Ironically, judges in both federal and state courts were soon quoting Korematsu as a binding precedent, holding that the Constitution protects a fundamental right against invidious discrimination on the basis of race.

Building on these precedents, the Warren Court established the use of the “strict scrutiny”Judicial scrutiny;and fundamental rights[fundamental rights] standard whenever examining a public policy with a suspect classification of persons, or a public policy restricting a fundamental right. When dealing with the second category, the justices first asked whether the policy could be justified by a compelling public interest, and then they demanded the government to show that it could not achieve its purpose with a policy that was less restrictive of the fundamental right.

A good example of the Warren Court’s approach to protecting fundamental rights is Sherbert v. Verner[c]Sherbert v. Verner (1963), which overturned a state’s unemployment compensation law that only indirectly placed a burden on a religious practice. In Griswold v. Connecticut[c]Griswold v. Connecticut (1965), moreover, the Court declared that the right of privacy was a fundamental right, even though privacy is not mentioned in the Constitution. The Court also held that the right of interstate movement was fundamental in Shapiro v. Thompson[c]Shapiro v. Thompson (1969). These seminal precedents prepared the way for the monumental Roe v. Wade[c]Roe v. Wade (1973) case, in which the justices expanded the right of privacy to include a woman’s fundamental right to terminate an unwanted pregnancy.

By the 1970’s,Judicial scrutiny the Court was crystallizing its jurisprudence into three levels, or standards. of judicial assessment: strict scrutiny, intermediate (or “heightened”) scrutiny, and minimal scrutiny. The Court applied the demanding standard of strict scrutiny to cases involving restrictions on fundamental rights, which included the right to equality based on race and sometimes alienage, as well as the right to voteVote, right to, the right to travelTravel, right to, the right to reproductive freedom, and selective rights in the first eight amendments. For governmental deprivations or restrictions in these areas to be approved, government had to show that the restriction is narrowly tailored to attain a “compelling” governmental interest. The intermediate standard was applied to gender, illegitimacy, and for many years affirmative action programs. It required government policy to be “substantially” related to an “important” governmental interest. Ordinary scrutiny was applied to cases involving indigency, age, homosexuality, education, housing, and welfare. This standard only required “reasonable” policies based on a “legitimate” government interest.

After William H. RehnquistRehnquist, William H.;and fundamental rights[fundamental rights] became chief justice in 1986, the Court’s conservative majority overturned several precedents concerning fundamental rights and strict scrutiny. In Planned Parenthood v. Casey[c]Planned Parenthood v. Casey (1992), for example, the Court endorsed a more permissive “undue burden”Undue burden standard standard for evaluating restrictions on the abortion rights of women. In Employment Division, Department of Human Resources v. Smith[c]Employment Division, Department of Human Resources v. Smith (1990), likewise, the majority of the justices announced that they would no longer use the standard of strict scrutiny when examining legislation of general applicability that placed an incidental burden on religion practices. In affirmative actionAffirmative action cases, however, the Court ruled in Richmond v. J. A. Croson Co.[c]Richmond v. J. A. Croson Co. (1989} and Adarand Constructors v. Peña[c]Adarand Constructors v. Peña (1995) that “any preference based on racial or ethnic criteria must necessarily receive a most searching examination.” When the Court approved such a preference in Grutter v. Bollinger[c]Grutter v. Bollinger (2003), it was only the second time (the first being Korematsu) that the opinion for the Court unambiguously approved a suspect classification when explicitly applying strict scrutiny assessment.

Further Reading

  • Abraham, Henry and Barbara Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
  • O’Brien, David M. Constitutional Law and Politics. Vol. 2, Civil Rights and Civil Liberties. 6th ed. New York: W. W. Norton, 2005.

Bill of Rights

Black, Hugo L.

Cardozo, Benjamin N.

Due process, substantive

Gratz v. Bollinger/Grutter v. Bollinger

Harlan, John M., II

Incorporation doctrine

Palko v. Connecticut