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 Rights
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.
The term “fundamental rights” entered American jurisprudence in Justice Bushrod Washington’s
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
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
During World War II, beginning with Murdock v. Pennsylvania
Building on these precedents, the Warren Court established the use of the “strict scrutiny”
A good example of the Warren Court’s approach to protecting fundamental rights is Sherbert v. Verner
By the 1970’s,
After William H. Rehnquist
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
Palko v. Connecticut