Fundamental Rights: Can Constitutional Law Violate Them?

The concept of fundamental rights is a complex and ever-evolving area of constitutional law, with ongoing debates about what constitutes a fundamental right and how these rights are protected. While some rights are explicitly stated in constitutions, such as the US Constitution and the Constitution of India, others are considered implied rights, derived from interpretation and legal precedent. Courts, particularly the Supreme Court in the US, play a pivotal role in determining what rights are fundamental and how they are applied in practice. This process often involves intense scrutiny of the historical foundations of these rights and their place in longstanding traditions. The dynamic nature of fundamental rights is exemplified by the shift in perspective on the right to contract, as seen in the Lochner and West Coast Hotel cases. The interpretation of fundamental rights is not static, evolving with societal changes and new understandings of the law. This evolution is influenced by legal, economic, and political theory, as well as societal circumstances, such as the impact of the Great Depression.

The right to privacy

In the United States, the right to privacy has been a subject of debate and judicial interpretation. The Supreme Court has played a pivotal role in shaping the contours of this right through landmark cases such as Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Lawrence v. Texas. In Griswold, the Court recognised an implied right to privacy in conjunction with the Ninth Amendment, protecting a person's decision to use contraceptives. This right to privacy was later extended to unmarried couples in Eisenstadt.

The infamous Roe v. Wade decision established abortion rights based on the right to privacy, derived from the Fourteenth Amendment's concept of personal liberty and restrictions on state action. However, this precedent was overturned in the Dobbs case, where the Court questioned implied rights not explicitly connected to the text and history of the Constitution.

Outside of the United States, the right to privacy is also recognised as a fundamental right in other jurisdictions. For example, in India, the Supreme Court ruled in 2017 that the right to privacy is a fundamental right under Article 21 of the Constitution. This ruling had far-reaching implications, paving the way for the decriminalisation of homosexuality and ensuring the protection of individual liberty in digital spaces.

In conclusion, the right to privacy is a dynamic and evolving concept that is deeply intertwined with other fundamental rights. While it is recognised as a fundamental human right in many parts of the world, its specific interpretations and legal protections vary across different legal systems. The ongoing judicial interpretation and legislative action continue to shape the scope and boundaries of the right to privacy.

Freedom of thought and expression

The right to freedom of thought and expression is also recognised in other international frameworks, such as the United Nations Universal Declaration of Human Rights, the U.N. International Covenant on Civil and Political Rights, and the U.N. International Covenant on Economic, Social and Cultural Rights. These frameworks provide a universal recognition of fundamental rights, including freedom of thought and expression.

In the United States, the Supreme Court plays a crucial role in determining what rights are considered fundamental under the Constitution. The Court's interpretations and rulings can evolve and change over time, as seen in the case of Lochner v. New York (1905) and West Coast Hotel v. Parrish (1937), where the Court reached different conclusions on the right to contract.

While freedom of thought and expression is widely recognised, it is not absolute and may be subject to limitations in certain circumstances. Governments have a responsibility to prohibit hateful and inciteful speech, but they must also respect peaceful dissent. The challenge lies in balancing the protection of public interests and individual rights while upholding freedom of thought and expression.

In conclusion, freedom of thought and expression is a fundamental human right that is protected by various legal frameworks and international declarations. It is essential for individual freedom, democracy, and the pursuit of other human rights. While it may be restricted in exceptional cases, it remains a cornerstone of free and just societies.

Equality of opportunity

In the United States, the Fourteenth Amendment, which came into effect in 1868, includes the Equal Protection Clause. This clause states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". In other words, individuals in similar situations must be treated equally by the law. The Fourteenth Amendment was a significant shift in American constitutionalism, imposing many more restrictions on the states than before the Civil War.

Despite this, equality for many groups has remained elusive. Before the Reconstruction Amendments, American law did not extend constitutional rights to black Americans, and they were considered inferior to whites. The 1857 Dred Scott v. Sandford decision, in which the Supreme Court rejected abolitionism, determined that black men, whether free or enslaved, had no legal rights under the Constitution. This set the country on the path to the Civil War and the subsequent ratification of the Reconstruction Amendments.

The Equal Protection Clause has been interpreted to mean that when certain fundamental liberties and interests are involved, adverse government classifications must be justified by a compelling interest necessitating the classification. For example, in Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated black and white students at separate institutions. The Court invalidated the school system because the separate facilities were not equal, lacking "substantial equality in the educational opportunities" offered to their students.

In terms of educational opportunity, the Court decided in San Antonio Independent School District v. Rodriguez (1973) that the Equal Protection Clause allows but does not require a state to provide equal educational funding to all students within the state. In addition, the Court's decision in Pierce v. Society of Sisters (1925) allowed families to opt out of public schools, despite the inequality in economic resources that made the option of private schools available to some and not to others.

Affirmative action programs, which give an advantage to blacks, Hispanics, and Native Americans in college admissions, employment, and winning government contracts, have been constitutionally contentious since the 1960s. While these programs are intended to atone for past racial discrimination and spread opportunity more equally throughout society, many believe they are morally questionable, have bred racial tensions, and stigmatize their intended beneficiaries. There are also empirical studies suggesting that preference programs constrict opportunities for the groups they are intended to benefit. For example, it has been suggested that there are fewer black lawyers today because of preferences for blacks in law school admissions.

The right to contract

In the United States, the right to make and enforce contracts is embedded in Title 42 of the US Code. This includes the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship". The right to contract has been a subject of debate, with conflicting rulings by the Supreme Court. In Lochner v. New York (1905), the Supreme Court found that the right to make a private contract is a fundamental right, emphasizing the importance of economic contracts in individual liberty. However, in West Coast Hotel v. Parrish (1937), the Court reversed its position, stating, "There is no absolute freedom to do as one wills or to contract as one chooses." This shift in jurisprudence was influenced by changing legal, economic, and political theories, as well as the harsh realities of the Great Depression.

The evolution of the right to contract in other countries, such as Australia, also reflects a balance between individual freedoms in contract negotiations and the protection of societal interests, particularly in consumer rights and fair trading practices. The Australian Consumer Law safeguards fair dealings and transparent terms in contractual agreements, ensuring a balance between freedom of contract and consumer protection.

The classification of a right as "fundamental" carries significant legal implications. Courts use specific legal tests to determine when and how the government may limit these rights. This involves examining the historical foundations of the rights and assessing whether their protection is part of a longstanding tradition. While the Supreme Court can recognize certain rights as fundamental, it also has the power to revoke this status, as seen in the case of the right to contract.

The right to equal treatment

In Europe, the European Convention on Human Rights guarantees the right to equality and freedom from discrimination, including on the basis of ethnicity, gender, or sexuality. The European Court of Human Rights has handed down judgments that uphold these principles, such as in the case of a woman at risk of domestic violence who faced eviction due to benefit cuts, where the Court ruled that she was discriminated against because of her gender.

Constitutional law can play a crucial role in upholding the right to equal treatment. For example, in the United States, the Fourteenth Amendment guarantees that no state shall "deny to any person within its jurisdiction the equal protection of the laws". This has been interpreted by the Supreme Court to mean that any law restricting a fundamental right must serve a compelling state purpose and be narrowly tailored to that purpose. Similarly, in India, the Constitution recognises six fundamental rights, including the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth.

However, there are also instances where constitutional law has been found to violate the right to equal treatment. For example, in the United States, the Supreme Court's interpretation of the Fourteenth Amendment has evolved over time, and in 1873, the Court essentially nullified the key language of the Amendment that guaranteed all "privileges or immunities". Additionally, the Court has revoked the fundamental right status of certain rights, such as the right to contract, which was initially recognised as fundamental in Lochner v New York (1905) but later revoked in West Coast Hotel v. Parrish (1937).

At the national level, many countries have enacted legislation to protect the right to equal treatment and prevent discrimination. For example, in the United Kingdom, the Equality Act 2010 protects everyone in Britain from discrimination on the basis of protected characteristics such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

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