fundamental right

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Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment.  These rights are specifically identified in the Constitution (especially in the Bill of Rights) or have been found under Due ProcessLaws encroaching on a fundamental right generally must pass strict scrutiny to be upheld as constitutional. 

Non-Exhaustive List of Fundamental Rights 

Examples of fundamental rights not specifically listed in the Constitution include:

  • marriage
  • privacy
  • contraception
  • interstate travel
  • procreation
  • custody of one's child(ren) 
  • voting

Repealing Fundamental Rights - The Fundamental Right to Contract

Even when the Supreme Court finds that something is a fundamental right, the Court may later revoke its standing as a fundamental right. The Court did this with the right to contract. In Lochner v New York (1905), the Supreme Court found that the right to make a private contract is a fundamental right. The Court focused on the importance of economic contracts in the context of individual liberty. In West Coast Hotel v. Parrish  (1937), however, the Court found that there is no fundamental right to contract: "There is no absolute freedom to do as one wills or to contract as one chooses."

There are many scholarships written about why the Court would take such drastically different approaches to a "fundamental right" in such a relatively short period of time. For further reading, this Minnesota Law Review article takes a thorough view of the shift. The article rejects the notion that "Lochner era was dominated by laissez-faire, social Darwinist Justices." Rather, the article argues that "the shift in constitutional values from Lochner to West Coast Hotel was the result of developments in legal, economic, and political theory, as well as the harsh realities of economic life during the Great Depression. Taken together, these factors were a powerful reason for the constitutional development embodied in West Coast Hotel."

Further Reading

For more on fundamental rights, read this University of Cincinnati Law Review article, this Cornell Law Faculty Scholarship article, and this Touro Law Review article

[Last updated in December of 2022 by the Wex Definitions Team]