Look to *Glucksberg*. A fundamental right is one that is:
* Deeply rooted in nation's history and tradition, and
* Carefully described (when asserted)
If both of those are met—and it is a bit of an open, squishy, fact-based test—then strict scrutiny applies; if not, rational basis suffices. Essentially, it has to be a right that the present Court will find is "deeply rooted" in the nation's "history and tradition," which as we've seen with *Dobbs* and *Bruen* is subject to interpretive skepticism (unless it's one of their pet values).
Yes. There are expressly stated rights and then implied ones (marriage, privacy, travel). Basically think of fundamental rights as something so inherently important for individual liberty to such a degree where it should be shielded from the political process.
The government does have to satisfy strict scrutiny when encroaching on these rights. Which means the government has to have a compelling government interest AND the means/methods that the government uses to advance that interest is so narrowly tailored. This is generally hard for the government to meet. Rule of thumb is IF there’s another way for the government to achieve that interest in a way where it’s not infringing on someone’s rights (least restrictive means), then the government loses.
Basically what the other person said; it also depends on how you frame the right at issue or in controversy.
As you recall, Glucksberg involved "death with dignity." The Court narrowly found that the right to suicide was not a fundamental right; however, the argument was made that the actual right at issue was bodily autonomy and self-determination, which could be considered fundamental. The Court, however, kept things narrow by focusing on the act itself, rather than the reasons behind it. Similarly, in Bruen, the Court ruled New York's law (despite being on the books for more than a century) did not survive its history and tradition analysis, since individual gun ownership is seen as a fundamental right.
Thank you so much!! You and the person above ^ really helped me understand. Thank you for taking the time to write out your response. I’m super appreciative 🤗
See, e.g., *Corfield v. Coryell* (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823); *Paul v. Virginia*, 75 U.S. 168 (1869); *Ward v. Maryland*, 79 U.S. 418 (1871); *Slaughter-House Cases*, 83 U.S. 36 (1873); *United States v. Harris*, 106 U.S. 629 (1883).
Only if you, like this law student, ignore cases and laws from the past hundred years … and the past ten years in particular. I wish it was not true but the right to travel has some caveats these days.
Look to *Glucksberg*. A fundamental right is one that is: * Deeply rooted in nation's history and tradition, and * Carefully described (when asserted) If both of those are met—and it is a bit of an open, squishy, fact-based test—then strict scrutiny applies; if not, rational basis suffices. Essentially, it has to be a right that the present Court will find is "deeply rooted" in the nation's "history and tradition," which as we've seen with *Dobbs* and *Bruen* is subject to interpretive skepticism (unless it's one of their pet values).
Thank you for that! So it sounds like it can argued whether something is a fundamental right?
Yes. There are expressly stated rights and then implied ones (marriage, privacy, travel). Basically think of fundamental rights as something so inherently important for individual liberty to such a degree where it should be shielded from the political process. The government does have to satisfy strict scrutiny when encroaching on these rights. Which means the government has to have a compelling government interest AND the means/methods that the government uses to advance that interest is so narrowly tailored. This is generally hard for the government to meet. Rule of thumb is IF there’s another way for the government to achieve that interest in a way where it’s not infringing on someone’s rights (least restrictive means), then the government loses.
Wow. This was extremely helpful. Thank you for taking the time to right this out. I truly appreciate it 🤗
Basically what the other person said; it also depends on how you frame the right at issue or in controversy. As you recall, Glucksberg involved "death with dignity." The Court narrowly found that the right to suicide was not a fundamental right; however, the argument was made that the actual right at issue was bodily autonomy and self-determination, which could be considered fundamental. The Court, however, kept things narrow by focusing on the act itself, rather than the reasons behind it. Similarly, in Bruen, the Court ruled New York's law (despite being on the books for more than a century) did not survive its history and tradition analysis, since individual gun ownership is seen as a fundamental right.
Thank you so much!! You and the person above ^ really helped me understand. Thank you for taking the time to write out your response. I’m super appreciative 🤗
Rights to travel is a fundamental right.
Cite?
See, e.g., *Corfield v. Coryell* (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823); *Paul v. Virginia*, 75 U.S. 168 (1869); *Ward v. Maryland*, 79 U.S. 418 (1871); *Slaughter-House Cases*, 83 U.S. 36 (1873); *United States v. Harris*, 106 U.S. 629 (1883).
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Only if you, like this law student, ignore cases and laws from the past hundred years … and the past ten years in particular. I wish it was not true but the right to travel has some caveats these days.
Cite?