What is a fundamental right?

A fundamental right is one considered essential to human dignity and self-government, deserving the highest level of protection from government interference. In American constitutional law, fundamental rights generally trigger strict scrutiny review when government tries to restrict them, requiring a compelling government interest pursued through narrowly tailored means.

The Supreme Court has identified several categories of fundamental rights. The first comprises rights specifically listed in the Bill of Rights and incorporated against state governments through the Fourteenth Amendment, including the freedoms of speech, religion, press, assembly, and petition under the First Amendment, the right to keep and bear arms under the Second Amendment, the right against unreasonable searches under the Fourth Amendment, the privilege against self-incrimination and the right to due process under the Fifth Amendment, the rights to a fair trial and counsel under the Sixth Amendment, and the right against cruel and unusual punishment under the Eighth Amendment.

The second comprises rights derived from substantive due process under the Fourteenth Amendment, even though they are not enumerated in the Constitution. These include the right to marry under Loving v. Virginia (1967), Zablocki v. Redhail (1978), Turner v. Safley (1987), and Obergefell v. Hodges (2015); the right to direct the education and upbringing of one's children under Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925); the right to procreate under Skinner v. Oklahoma (1942); the right to bodily integrity under Cruzan v. Director, Missouri Department of Health (1990); and the right to interstate travel under Saenz v. Roe (1999).

The third category includes voting rights protected by the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, recognized as fundamental in Reynolds v. Sims (1964) and Harper v. Virginia State Board of Elections (1966).

The Court applies a two-step analysis to determine whether an unenumerated right qualifies as fundamental, articulated in Washington v. Glucksberg (1997): the right must be deeply rooted in the Nation's history and tradition and implicit in the concept of ordered liberty. Dobbs v. Jackson Women's Health Organization (2022) used this framework to overrule Roe v. Wade (1973) by concluding that abortion did not meet the historical test, although Justice Brett Kavanaugh's concurrence cautioned that other recognized rights including marriage and contraception remained protected.

The Ninth Amendment underwrites the broader idea that fundamental rights are not exhausted by the constitutional text. Naturalization candidates should know that fundamental rights are those that cannot be lightly restricted, regardless of majority preference.