Fundamental rights

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

Significance: The Supreme Court utilized the doctrine of fundamental rights as a basis for deciding which provisions of the Bill of Rights should be binding on the states through incorporation of the Fourteenth Amendment. After the 1950s, moreover, the court began applying “strict scrutiny” standards when examining governmental restrictions on those rights deemed to be fundamental.

James Madison, when making his proposal for a bill of rights in 1789, 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.

The term “fundamental rights” entered American jurisprudence in Justice Bushrod Washington’s circuit court opinion, Corfield v. Coryell (1823), which focused on Article IV’s entitlement of “privileges and immunities of Citizens in the several states.” Washington, who was influenced by the natural law tradition, wrote that this entitlement included a few rights which 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 to travel through the states.

John Bingham and the other framers of the Fourteenth Amendment often quoted Corfield when discussing the “privileges or immunities” clause (commonly known as the “P or I clause”) which they inserted into the new amendment. Although it is doubtful that most framers expected the privileges or immunities 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 unusually restrictive interpretation to the clause in the Slaughterhouse Cases (1873), an interpretation that has never been directly overturned.

During the years from 1897 to 1937, the majority of the justices 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 (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, the 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 had been arguing about which, if any, of these rights should be incorporated into the Fourteenth Amendment, thus making them applicable to the states. In the seminal case, Palko v. Connecticut (1937), Justice Benjamin Cardozo 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 later years, the majority of the justices endorsed some variation of Cardozo’s approach to incorporation.

A related question was whether the court should apply the same standards of scrutiny when considering fundamental rights that they applied when considering less essential rights. In the famous “footnote four” of United States v. Carolene Products, Co. (1938), Justice Harlan Stone suggested that it might be appropriate to utilize a heightened level of scrutiny when examining three kinds of policies: (1) those appearing to contradict an explicit constitutional prohibition; (2) those appearing to interfere with political processes, such as a limitation on the right to vote; and (3) those that discriminate against members of 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 (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 (1944), the majority opinion declared that public policies discriminating on the basis of race were “immediately suspect,” therefore requiring “the most rigid scrutiny.”

Building on these precedents, the Warren Court established the use of the “strict scrutiny” standard during the 1950s and 1960s, whenever examining public policies with suspect classifications of persons, or public policies restricting fundamental rights. 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 was Sherbert v. Verner (1963), which overturned a state unemployment compensation law that only indirectly placed a burden on a religious practice. In Griswold v. Connecticut (1965), moreover, the Court declared that the right of privacy was a fundamental right, even though the term was not in the Constitution. The court also held that the right of interstate movement was fundamental in Shapiro v. Thompson (1969). These activist decisions prepared the way for the monumental case, Roe v. Wade (1973), in which the justices expanded the right of privacy to include a woman’s fundamental right to terminate an unwanted pregnancy.

After William Rehnquist became chief justice in 1986, the court’s conservative majority overturned several precedents concerning fundamental rights and strict scrutiny. In Planned Parenthood v. Casey (1992), for example, the court endorsed a more permissive “undue burden” standard for evaluating restrictions on the abortion rights of women. In Employment Division 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. When evaluating racial preferences in affirmative action programs, however, the Rehnquist Court applied the demanding standard of strict scrutiny.

Bibliography

Della Cananea, Giacinto. Due Process of Law Beyond the State: Requirements of Administrative Procedure. Oxford UP, 2016.

Johns, Fran Moreland. Perilous Times: An Inside Look at Abortion before—and after—Roe v. Wade. YBK, 2013.

Lake, Jessica. The Face That Launched a Thousand Lawsuits: the American Women Who Forged a Right to Privacy. Yale UP, 2016.

Sandefur, Timothy, and Christina Sandefur. Cornerstone of Liberty: Property Rights in 21st-Century America. 2nd ed., Cato Institute, 2016.

Shipler, David K. Freedom of Speech: Mightier Than the Sword. Alfred A. Knopf, 2015.