fundamental right

Primary tabs

Overview

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 implied through interpretation of  clauses, such as under Due Process. These laws are said to be “fundamental” because they were found to be so important for individual liberty that they should be beyond the reach of the political process, and therefore, they are enshrined in the Constitution. Laws encroaching on a fundamental right generally must pass strict scrutiny to be upheld as constitutional. 

Examples of Fundamental Rights 

Fundamental rights mentioned directly in the Constitution:

Fundamental rights not specifically listed in the Constitution include:

  • Marriage
  • Privacy
  • Contraception
  • Interstate Travel
  • Procreation
  • Custody of One's Child(ren)

Determining Fundamental Rights

Even though rights may be fundamental, that does not necessarily mean that the extent of a right or a right itself has always been recognized. One of the primary roles of the Supreme Court is determining what rights are fundamental under the Constitution, and the outcomes of these decisions have led to the Court’s most controversial and contradictory opinions. The Supreme Court must use different pillars of statutory interpretation to determine how fundamental rights evolve to meet new situations and new understandings of the law. 

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 sometimes takes 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 regarding the right to contract. 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."

Interpretation of Implied Rights

Fundamental rights that the Supreme Court decides are implied in the Constitution often have more difficult rulings that change over time compared to rights explicit in the Constitution. Specifically mentioned rights, like the freedom of speech, mainly require the Court to just determine the extent of the right. Implied rights require further connection with Constitutional text, principles, and analogies to support the foundation for the right. This complex process often triggers intense debates on methods of interpreting the constitution such as whether judges must adhere strictly to the text or have freedom to make decisions reflecting the problems of today. 

For example, the Supreme Court fundamentally established a right to privacy in Griswold v. Connecticut under the reasoning that multiple amendments to the Constitution taken together create “penumbras” of rights not explicitly stated. Looking at rights like protection against self-incrimination and against soldiers residing in peoples’ homes during peacetime, the Court found an implied right to privacy being protected by these rights in conjunction with the Ninth Amendment. Griswold determined that the right to privacy protected a person’s decision to use contraceptives, and ever since, the Court has struggled to determine exactly what the right to privacy means. The infamous right to abortion established by Roe v. Wade was based upon the right to privacy. The right to abortion was rephrased multiple times until the Court, in Dobb’s v. Jackson Women’s Health Organization, struck down the status of abortion as a fundamental right guaranteed by a right to privacy. In Dobbs, the Court went beyond the right to abortion and hinted that any implied rights like the right to privacy could be questioned if not connected to the text and history of the Constitution. For more information on the implications of the Dobbs decision, see this Syracuse University Law Review article.

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 March of 2023 by the Wex Definitions Team]