![]() ![]() If the Court finds that this is not the case, the action will be unconstitutional. Once a fundamental right is established, the Court generally will then apply its most stringent level of review, what is known as “strict scrutiny.” Meaning, for a government action infringing on a fundamental right to be constitutional, the action must have a compelling purpose and the action must be narrowly tailored to that purpose. Simply because a right is found, does not mean that the government cannot constrict that right under certain circumstances. It is important to remember, however, that like with many other clauses in the Constitution, little is absolute. ![]() To decide if a right is fundamental, the Court asks “whether the right…is fundamental to our scheme of ordered liberty…or whether this right is deeply rooted in our nation’s history and tradition.” Though this may sound more like a philosophical musing than a legal test, these phrases are at the core of what the Court has looked to in establishing implied fundamental rights.īelow, you will find examples of potential rights the Court has grappled with. ![]() The parameters, however, of what constitutes a right so fundamental as to be implied by the Due Process Clause have never been entirely concrete. As time has passed, the Supreme Court has found numerous such rights. In addition to housing Procedural Due Process and being the bridge through which the Bill of Rights is applicable to the states, the Due Process Clause also guarantees substantive rights unto itself.Ĭonceptually, there may be no limit to the number of rights that can be derived from the Due Process Clause. Among the sources of the implied rights, the Due Process Clause is by far the richest. Some of these rights, though, are implied. They are stated outright in the text of the Constitution. Meaning, under the Constitution, people have certain rights, freedom of speech, for example, that the government cannot infringe upon. However, the US Constitution does provide so-called negative rights. For an alternative vision of a national constitution that does provide such things, see the Constitution of South Africa. There is no constitutional right to public education and there is no constitutional right to employment. There is no constitutional right to access to healthcare. Meaning, under the Constitution, federal and state governments do not have to affirmatively provide things for you. The US Constitution, unlike other constitutions around the world, does not generally afford positive rights. If you meant to find Procedural Due Process. *By arriving here, you have found Substantive Due Process. ![]()
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