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Fundamental rights: Wikis


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From Wikipedia, the free encyclopedia

The doctrine of fundamental rights is a feature of United States law under which certain human rights that are enshrined in the U.S. Constitution are given a high degree of judicial deference in conflicts between individual liberty and governmental intrusion. Although many fundamental rights are also more widely considered to be human rights, the classification of a right as fundamental invokes specific legal tests used by courts to determine the carefully constrained conditions under which the United States government and the various state governments may impose limitations on these rights.


Rights considered fundamental

The rights that are considered fundamental, are the rights that are essential to freedom. The basic rights to free speech and protection of self and property, are to be considered unalienable by any person or government. This means people are given these rights not from government, but from nature. As such government can not infringe upon one's fundamental rights without enslaving those they wish to control.

The Supreme Court of the United States has generally determined whether rights are to be considered fundamental by examining the historical foundations of those rights, and determining whether their protection was part of a longstanding tradition. Other rights may be guaranteed as fundamental by individual states.

Some rights generally recognized as fundamental at the federal level follows:

History in United States Law

In American Constitutional Law, fundamental rights have special significance under the 14th Amendment to the Constitution. Via the due process and equal protection clauses of that amendment, the Supreme Court has held that some rights 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.

While the recognition of such rights have changed over time, they are generally coterminous with the rights listed in the Bill of Rights. Although some of the rights enumerated in the Bill of Rights are currently recognized as fundamental, others statements were included to restrict the government's permission with respect to the privileges granted by Citizens, or more clearly explain one of the many rights each Citizen was born with, declared in the preamble of the United States Bill of Rights. There are exceptions to these amendments; 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. While having power to neither grant nor remove an individual right, the Supreme Court has legally recognized some fundamental rights not specifically enumerated in the Constitution, including:

  • the right to privacy
  • the right to marriage
  • the right to procreation
  • the right to interstate travel

Any restrictions on these rights on the basis of race or religion are evaluated with strict scrutiny. If they are denied to everyone, it is an issue of substantive due process. If they are denied to some individuals but not others, it is also an issue of equal protection.

During the Lochner era, the right to freedom of contract was considered to be 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.

Other Jurisdictions



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


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