Fundamental rights
Encyclopedia
Fundamental rights are a generally-regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or "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 due 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.
For example, in United States
law, "fundamental rights" are a feature of the U.S. Constitution, which, in the language of the U.S. Declaration of Independence
, "all [human beings
]" are "endowed by their Creator
with certain unalienable Rights, among these [being]:"
, 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 hearing
s 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:
Any restrictions on these rights 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.
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
." Such rights thus belong without presumption or cost of privilege
Privilege
A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth...
to all human beings under such jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
.
The concept of human rights has been promoted as a legal concept in large part due 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.
For example, in United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law, "fundamental rights" are a feature of the U.S. Constitution, which, in the language of the U.S. Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
, "all [human beings
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
]" are "endowed by their Creator
Creator deity
A creator deity is a deity responsible for the creation of the world . In monotheism, the single God is often also the creator deity, while polytheistic traditions may or may not have creator deities...
with certain unalienable Rights, among these [being]:"
- LifeLifeLife is a characteristic that distinguishes objects that have signaling and self-sustaining processes from those that do not, either because such functions have ceased , or else because they lack such functions and are classified as inanimate...
- (cf. right to lifeRight to lifeRight to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
) - LibertyLibertyLiberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
(cf. freedom, free willFree will"To make my own decisions whether I am successful or not due to uncontrollable forces" -Troy MorrisonA pragmatic definition of free willFree will is the ability of agents to make choices free from certain kinds of constraints. The existence of free will and its exact nature and definition have long...
, personal liberty) - the pursuit of HappinessHappinessHappiness is a mental state of well-being characterized by positive emotions ranging from contentment to intense joy. A variety of biological, psychological, religious, and philosophical approaches have striven to define happiness and identify its sources....
(cf. personal fulfillmentFulfillmentFulfilment or fulfillment may refer to:* Fulfillment house, a type of company that specializes in order fulfillment* Order fulfillment, the activities performed once an order is received...
, professional accomplishment, basic comforts, human pleasurePleasurePleasure describes the broad class of mental states that humans and other animals experience as positive, enjoyable, or worth seeking. It includes more specific mental states such as happiness, entertainment, enjoyment, ecstasy, and euphoria...
s, luxuries, vices)
List of important rights
Some universally recognized rights as fundamental, i.e., contained in the U.N. Covenant on Civil and Political Rights or the U.N. Covenant on Economic, Social and Cultural Rights, are as follows:- Right to equal protection under the law
- Right to freedom of thoughtFreedom of thoughtFreedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
- Right to freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and press (cf. freedom of expression) - Right to freedom of associationFreedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
- Right to freedom of movementFreedom of movementFreedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
within the country - Right to vote in general election
- Right to direct a child's upbringing
- Right to privacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
- Right to marry
- Right to propertyPropertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
- Right to freedom of contractFreedom of contractFreedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
by parties with proportional bargaining power
Legal meaning
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. In such legal contexts, as 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.History in United States Law
In American Constitutional LawUnited States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
, fundamental rights have special significance under the 14th Amendment to the Constitution. Via the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
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
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. 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
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. There are exceptions to these amendments; states are not required to obey the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
requirement of indictment by grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
. Many states choose to have preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
s 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 interstate travel
- the right to vote
- the right to privacy (which includes within it a set of rights) including;
- a. the right to marriage
- b. the right to procreation
- c. the right to an abortion
- d. the right to private education (Homeschooling one's children)
- e. the right to contraception (the right to use contraceptive devices)
- f. the right of family relations (the right of related persons to live together)
Any restrictions on these rights are evaluated with strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. If they are denied to everyone, it is an issue of substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
. If they are denied to some individuals but not others, it is also an issue of equal protection
During the Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
, the right to freedom of contract
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
was considered to be fundamental and thus restrictions on that right were subject to strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. Following the 1937 Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision in West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...
, though, the right to contract became considerably less important in the context of substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
and restrictions on it were evaluated under the rational basis standard.