Fundamental rights

Lore & Background

Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. Some universally recognised rights that are seen as fundamental include self-determination, liberty, due process of law, freedom of movement, right to privacy, freedom of thought, freedom of conscience, freedom of religion, freedom of expression, freedom of assembly, and freedom of association. In Canada, the Charter of Rights and Freedoms outlines four Fundamental Freedoms: conscience and religion; thought, belief, opinion, and expression, including freedom of the press and other media of communication; peaceful assembly; and association. On a European level, fundamental rights are protected by the Charter of Fundamental Rights of the European Union, the Fundamental Freedoms of the European Union, and the European Convention on Human Rights. In Japan, fundamental rights protected by the Constitution of Japan include civil liberties (right to liberty, freedom of expression, thought, conscience and religion) and social rights (right to receive education, right to maintain minimum standards of wholesome and cultured living). In India, there are six fundamental rights recognized in the Constitution of India: right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. In the United States, though many fundamental rights are also widely considered human rights, the classification of a right as 'fundamental' invokes specific legal tests courts use to determine the constrained conditions under which the government may limit these rights. Courts determine whether rights are fundamental by examining historical foundations and whether their protection is part of a longstanding tradition.

Reader's Guide

Fundamental rights are significant because they receive a high degree of protection from encroachment by governments. In the United States, the classification of a right as fundamental invokes strict scrutiny review in court, meaning any law restricting such a right must serve a compelling state purpose and be narrowly tailored. The U.S. Supreme Court has recognized both enumerated rights in the Bill of Rights and unenumerated rights (such as the right to interstate travel, to parent one's children, to privacy, and to marriage) as fundamental. Not all clauses have been incorporated; for example, states are not required to obey the Fifth Amendment's requirement of indictment by grand jury. Internationally, the United Nations' Sustainable Development Goal 17 links promoting human rights to sustaining peace. The legacy of fundamental rights is that they provide a legal framework for protecting individual liberties against government overreach, though the specific rights and their interpretation vary by jurisdiction.

Did You Know?

• The U.S. Supreme Court has extended fundamental rights to include unenumerated rights such as the right to interstate travel, the right to parent one's children, the right to privacy, and the right to marriage.