Fundamental rights

Fundamental rights are a generally regarded set of legal protections in the context of a legal system, wherein such system is itself based upon this same set of basic, fundamental, or inalienable rights. Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part owing to the idea that human beings have such "fundamental" rights, such that transcend all jurisdiction, but are typically reinforced in different ways and with different emphasis within different legal systems.

List of important rights

Some universally recognized rights as fundamental, i.e., contained in the United Nations Universal Declaration of Human Rights, the U.N. International Covenant on Civil and Political Rights, or the U.N. Covenant on Economic, Social and Cultural Rights, include the following:

• Right to self-determination^[1]
• Right to liberty^[2]
• Right to due process of law^[2]
• Right to freedom of movement^[3]
• Right to freedom of thought^[4]
• Right to freedom of religion^[4]
• Right to freedom of expression^[5]
• Right to peaceably assemble^[6]
• Right to freedom of association^[7]

Legal meaning

Though many fundamental rights are also widely considered human rights, the classification of a right as fundamental invokes specific legal tests courts use to determine the constrained conditions under which the United States government and various state governments may limit these rights. In such legal contexts, courts determine whether rights are fundamental by examining the historical foundations of those rights, and determining whether their protection is part of a longstanding tradition. Individual states may guarantee other rights as fundamental.

Specific jurisdictions

Canada

In Canada, the Charter of Rights and Freedoms outlines four Fundamental Freedoms.^[8] These are freedom of:

• Conscience and religion
• Thought, belief, opinion and expression, including freedom of press and other media of communication
• Peaceful assembly
• Association.

European Union

Europe has no identical doctrine (it would be incompatible with the more restrained role of judicial review in European law.) However, E.U. law recognizes many of the same human rights, and protects them through other means.

See also: Copenhagen criteria (Human Rights), and European Convention on Human Rights, which every member state of the EU has to comply with and for which the European Court of Human Rights has final appellate jurisdiction.

India

There are six main fundamental rights of India:

• right to move anywhere
• right to equality
• right to freedom
• right to freedom of religion
• right against exploitation
• cultural and educational rights
• right to constitutional remedies

United States

In American Constitutional Law, fundamental rights have special significance under the US Constitution.

Those rights enumerated in the US Constitution are recognized as "fundamental" by the US Supreme Court. The Court further describes fundamental rights as those rights that pre-exist the Foundation of the United States. Such fundamental rights exist philosophically and legally at the individual level and are not dependent upon the existence of government. They are - in essence - an element of humanity, rather than a construct of government. These fundamental rights are frequently also termed "God-given rights", "human rights" or "natural rights". All such terms refer to the fundamental nature of certain rights under the US Constitution.

According to the Supreme Court, enumerated rights that are incorporated are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.

The original interpretation of the United States Bill of Rights was that is was binding exclusively to the Federal Government. In 1835, the US Supreme Court in Barron v Baltimore unanimously ruled that the Bill of Rights did not apply to the states. During post Civil War Reconstruction, the 14th Amendment was adopted in 1868 to rectify this condition, and to specifically apply the whole of the Constitution against all US States. In 1873, a Supreme Court essentially nullified the key language of the 14th Amendment that guaranteed all "privileges and immunities" to all US persons, in a series of cases called the Slaughterhouse cases. In so doing, they set up a system that allowed post-emancipation racial discrimination to continue largely unabated.

Later Supreme Court justices found a way around these limitations without overturning the Slaughterhouse precedent: they created a concept called Selective Incorporation. Under this legal theory, the court used the remaining 14th Amendment protections for equal protection and due process to "incorporate" individual elements of the Bill of Rights against the states. "The test usually articulated for determining fundamentality under the Due Process Clause is that the putative right must be 'implicit in the concept of ordered liberty', or 'deeply rooted in this Nation's history and tradition.'" Compare page 267 Lutz v. City of York, Pa., 899 F. 2d 255 - United States Court of Appeals, 3rd Circuit, 1990.

This set up a continuous process under which each individual right under the Bill of Rights was incorporated, one by one. That process has extended more than half a century, with the free speech clause of the First Amendment first incorporated in 1925 in Gitlow v New York. The most recent amendment completely incorporated as fundamental was the Second Amendment right to possess and bear arms for personal self-defense, in McDonald v Chicago, handed down in 2010.

Not all clauses of all amendments have been incorporated. For example, states are not required to obey the Fifth Amendment requirement of indictment by grand jury. Many states choose to have preliminary hearings instead of grand juries. It is possible that future cases may incorporate additional clauses of the Bill of Rights against the states.

The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution, including but not limited to:

• The right to interstate travel
• The right to intrastate travel
• The right to privacy^[9] (which includes within it a set of rights) including:

a. The right to marriage^[10][11]

b. The right to procreation ^[12]

c. The right for a woman to choose to have an abortion before fetal viability ^[13][14]

d. The right to contraception (the right to use contraceptive devices) ^[15]

e. The right of family relations (the right of related persons to live together)

Any restrictions on these rights are evaluated with strict scrutiny. If a right is denied to everyone, it is an issue of substantive due process. If a right is denied to some individuals but not others, it is also an issue of equal protection. However, any action that abridges a right deemed fundamental, when also violating equal protection, is still held to the overriding standard of strict scrutiny, instead of simply a rational basis test.

During the Lochner era, the right to freedom of contract was considered fundamental, and thus restrictions on that right were subject to strict scrutiny. Following the 1937 Supreme Court decision in West Coast Hotel Co. v. Parrish, though, the right to contract became considerably less important in the context of substantive due process and restrictions on it were evaluated under the rational basis standard.

See also

• Fundamental Rights Agency of the European Union

Footnotes