Fundamental Rights

Because individual liberty lies at the core of the American constitutional system, more rights are protected under law in the United States than in other societies. Under such conditions, not all rights will be considered equal, but a hierarchy of valued liberties will emerge. The freedoms that Americans deem the most important are denominated “fundamental rights.”

The justices of the Supreme Court have defined fundamental rights to be those without which neither liberty nor justice would exist. They are freedoms essential to the concept of ordered liberty, inherent in human nature, and consequently inalienable (Palko v. Connecticut, 1937). As such, these are rights that should prevail if in conflict with governmental authority or other, less valued, liberties.

The specific rights that fall under the definition of fundamental rights have varied over the country's history. During the nation's first century, for example, freedom of contract and other rights of property were considered fundamental. With the decline of economic substantive due process, however, these property rights lost their primacy. In the twentieth century, personal liberties have taken on fundamental status. Through the process of selective incorporation, the Supreme Court has determined that with only a few exceptions the provisions of the Bill of Rights meet the definition of fundamental liberties and are constitutionally immune from encroachment by state and local governments as well as federal. In recent years, the right to privacy and protections against various forms of discrimination have increasingly been seen as fundamental.

— Thomas G. Walker