a right that is considered by a court (as the U.S. Supreme Court) to be explicitly or implicitly expressed in a constitution (as the U.S. Constitution) Note: A court must review a law that infringes on a fundamental right under a standard of strict scrutiny. A fundamental right (e.g., right to privacy) can be limited by a law only if there is a compelling state interest, Roe Wade, 410 U.S. 113 (1973).
a non-derivative right protecting a fundamental interest
a right explicitly or implicitly guaranteed to individuals by the United States Constitution or a state constitution
a Right that none can take away
a right which is guaranteed explicitly or implicitly by the constitution
a right which the constitution explicitly or implicitly guarantees
a right derived from natural or other source of law; examples include the right to Due Process, Equal Protection, Free Speech; these are rights guaranteed explicitly or implicitly by the constitution
A right which is either affirmative (in the first sense above) or which is clearly established in our nation's legal tradition and case law. The theoretical constitutional (U.S.) basis for a "fundamental right" is the substantive due process clause of the Fourteenth Amendment, which prohibits the federal government or any state from "unfairly" abridging a life, liberty, or property interest. Example: (opposite-sex) marriage, and (today, in most cases) the right to vote. The surest way to make a right "fundamental" would be to amend the Constitution to make it "affirmative." However, courts sometimes derive or extract new "fundamental rights" by from the text (with due regard to original intent and textualism) of existing rights as interpreted by current social culture. “Fundamental right” is a very important concept when the Supreme Court considers limiting the power of government to make a particular behavior illegal. Exalted Right: A fundamental right which may require statutory protection if there is an apparent conflict with another fundamental right.
A fundamental right is a right that has its origin in a country's constitution or that is necessarily implied from the terms of that constitution. These fundamental rights usually encompass those rights considered natural human rights.
