Fundamental rights
Rights given high protection from encroachment.
Fundamental rights are a category of rights that receive strong legal protection against interference. They are either explicitly listed in a constitution or established through due process of law. The United Nations' Sustainable Development Goal 17, created in 2015, highlights the connection between advancing human rights and maintaining peace.
A number of widely accepted fundamental rights appear in the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, or the International Covenant on Economic, Social and Cultural Rights. These include self-determination, liberty, due process of law, freedom of movement, the 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 lists four fundamental freedoms: conscience and religion; thought, belief, opinion, and expression (including press and other media); peaceful assembly; and association.
At the European level, fundamental rights are covered by three legal instruments: the Charter of Fundamental Rights of the European Union, the Fundamental Freedoms of the European Union, and the European Convention on Human Rights.
Japan’s constitution protects civil liberties—such as liberty, freedom of expression, thought, conscience, and religion—as well as social rights, including the right to education and the right to a minimum standard of wholesome and cultured living.
India’s constitution recognizes six fundamental rights. The right to equality (Articles 14–18) covers equality before the law, a ban on discrimination based on religion, race, caste, sex, or birthplace, equal opportunity in public employment, abolition of untouchability, and abolition of titles. The right to freedom (Articles 19–22) includes protections for speech, expression, assembly, association, movement, and residence; safeguards in criminal convictions; protection of life and personal liberty; and the right to education. The right against exploitation (Articles 23–24) prohibits human trafficking, forced labor, and child labor. The right to freedom of religion (Articles 25–28) allows freedom of conscience and the practice and propagation of religion, management of religious affairs, exemption from taxes for promoting any particular religion, and freedom from compulsory religious instruction in certain schools. Cultural and educational rights (Articles 29–30) protect minority interests and allow minorities to establish and run educational institutions. The right to constitutional remedies (Articles 32 and 226) lets individuals approach the Supreme Court or High Courts to enforce these rights.
In the United States, labeling a right as "fundamental" triggers specific legal tests that courts use to decide when the federal or state governments can limit it. Courts determine whether a right is fundamental by looking at its historical roots and whether it is part of a long-standing tradition—specifically, whether it is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." States can add to fundamental rights but cannot reduce them, and any attempt to infringe on them may face strict scrutiny in court. Under the U.S. Constitution, rights listed in the document are considered fundamental by the Supreme Court. If a law restricts such an incorporated right, it must serve a compelling government interest and be narrowly tailored to that goal. Originally, the Bill of Rights only applied to the federal government. In 1835, the Supreme Court ruled in Barron v. Baltimore that it did not bind the states. After the Civil War, the Fourteenth Amendment (1868) was meant to change this and apply the Constitution to all states. However, in 1873, the Slaughterhouse cases largely nullified the amendment’s guarantee of "privileges or immunities" for all citizens, allowing racial discrimination to continue. Later justices worked around this without overturning the precedent by developing selective incorporation. This approach used the Fourteenth Amendment’s equal protection and due process clauses to apply individual parts of the Bill of Rights to the states.
- field
- Law and human rights
- known_for
- Rights protected from encroachment, often enumerated in constitutions or found under due process
- related_documents
- Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural 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.
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