What is a Fundamental Right?
The Supreme Court made one attempt to define a fundamental right and that was not until 1997. In Glucksberg v. Washington, the Court held a fundamental right was an action that was deep rooted in American society, history, and culture. Unfortunately, the meaning of deep-rooted has erroneously evolved, by some opponents of Glucksberg, to suggest a right only needs to be supported by a simple majority of the states and populous. While deep-rooted means entrenched in American culture since its founding, many opponents also argue deep-rooted means dating back a mere generation (25 – 30 years).
Amendments and many important legislative measures require supermajorities for their passage, not just simple majorities. Furthermore, the rights of humanity have never changed over the course of world history. Thus, rights do not come from government directives, they existed before the formation of government. More specifically, rights come from God. Therefore, one may conclude, Americans only consent to be governed for one primary reason - For the government to provide each citizen protection to safeguard their individual rights.
For that reason, the best definition of a right was put forth by natural law philosopher, John Locke, in his Second Treatise of Government (1689). Locke defined a right as an action that the “fewest people can deny” or in other words, a true fundamental right should have near unanimous support by the citizens of a nation. Locke’s Second Treatise of Government was arguably one of the most persuasive writings that influenced the founders and the writing of the Constitution.
What about Gun Rights and Religious Liberty?
The right to bear arms and the practice of religion are certainly not unanimously accepted. But the Second Amendment protects the right to self-defense and self-preservation which are unanimously accepted. Our founders were smart, they protected the right to bear arms because they understood if any method of self-defense would come under government regulation, it would be gun ownership.
The First Amendment’s Free Exercise Clause does not just protect Christians, but non-Christians and atheists. The clause specifically protects the unanimously accepted right to conscious thought (our beliefs) for all persons. Again, the founders protected religious liberty because the founders understood if any of our personal beliefs would be restricted by the government, it would be religious liberty. After all, America was founded by people escaping religious persecution in Europe.
Fundamental Right Properties
There are many properties of fundamental rights. Since rights are actions we can pursue without government regulation, rights cannot be government created entitlements. The government, however, insists it can improve, mitigate, delete, regulate, create, and guarantee rights. The role of the government is to protect the rights of citizens equally, not to regulate rights.
Government regulation of a right turns that right into a political issue that will not have near unanimous public support. For example, people have a right to pursue housing, healthcare insurance, income, and a higher education. However, once the government guarantees these actions for all citizens, they become political issues that are no longer unanimously accepted.
Guaranteed actions lose public support because some citizens must be compelled to pay higher taxes to fund the entitled right for other citizens. Thus, guaranteed actions are not protected equally. When one citizen must pay higher taxes to fund entitled rights for another citizen, it reduces their buying power and unfairly limits the rights or actions they are free to pursue.
It is important to remember that rights are actions citizens may or may not choose to pursue through free will. No right is guaranteed or can be compelled. For instance, no one is ever guaranteed a long life or happiness regardless of the amount of government interference.
Another principle of a right is that they are equal since the Constitution does not support a hierarchical ranking of rights. It was Prout v. Starr, mentioned in my previous article, that opened my eyes to this principle.
Aristotle also observed our rights are interrelated. If our rights are equal and interrelated it means if one right is mitigated, then all our rights are infringed to some degree. For instance, if we lose any of our inalienable rights to life, liberty, and happiness, then all our rights disappear.
If free speech rights, the cornerstone to any free society, are infringed, then it follows that our due process protections are no longer preserved. The bottom line, we cannot pick and choose which rights to protect and which to disregard or regulate unequally between citizens.
Enumerated Rights
Enumerated rights are those rights that are listed in the Constitution. In particular, enumerated rights are those rights listed in the Bill of Rights such as the right to free speech, freedom of association, freedom of the press, freedom of conscious thought, religious liberty, the right to bear arms, the right to self-defense and self-preservation, the right to property ownership, the right to due process or procedural rights, and the right to vote (added in the Fifteenth, Nineteenth, and Twenty-Sixth Amendments).
Unenumerated Rights
This is where things start to get messy. Unenumerated rights are those rights of citizens that are not listed in the Constitution. Courts and legislators have made a mess out of defining what an unenumerated right is and how unenumerated rights should be identified and protected by the Constitution. Since unenumerated rights are not constitutionally protected, they are the easiest rights for the government to infringe. Defining what our most essential unenumerated rights are and how they are identified and protected by the Constitution is a subject detailed in future blogs.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
