Answer from Michael Farris, J.D., LL.M:
Some say that to use the term ‘fundamental’ introduces new language that is already understood as a civil or government-granted right.
The historical record is to the contrary. The anti-federalists, who essentially campaigned against the Constitution because of the lack of a bill of rights, employed the term “fundamental rights” to describe what was missing from our Constitution.
For example, in Letters from a Federal Farmer (No. 16), dated January 20, 1788, and generally thought to have been written by Richard Henry Lee, there is a recurring use of the term “fundamental rights” in an argument for the necessity of a bill of rights.
The trial by jury in criminal as well as in civil causes, has long been considered as one of our fundamental rights, and has been repeatedly recognized and confirmed by most of the state conventions. But the constitution expressly establishes this trial in criminal, and wholly omits it in civil causes.
The “Farmer” belittles the position that all rights are protected under the assumption of their inalienability with no need to enumerate them in a bill of rights. He points out that the Constitution protects the right of habeas corpus, which he describes as a “fundamental right.” When one “fundamental right” is listed, how then can we claim that all other such rights will be protected by constitutional silence?
The “Farmer” describes the general collection of the rights of the people as “fundamental rights.” He goes on to say:
All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever. Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it.
The plain historical facts are that the parties who won the political argument over the necessity of the bill of rights were the anti-federalists. These parties argued that it was error to include some “fundamental rights” like “habeas corpus,” while leaving out other “fundamental rights” like freedom of the press. It was because of these very arguments that we have the First Amendment, which guarantees the freedom of the press.
In 1786, James Madison wrote a petition to the General Assembly of Virginia protesting a bill that gave special authority to the clergy of the Anglican Church. One of his points of opposition to the legislation was:
Because the law constitutes the Clergy members of a convention who are to legislate for their laity contrary to their fundamental right of chusing their own legislators.1
It is absolutely clear that the Founders used the term “fundamental right” concerning the freedom of the press, the right to trial by jury, and the right to self-government. Any claim that they believed that fundamental rights were merely “civil or government-granted rights” is not historically correct.
The historical pedigree of the term “fundamental right” is unassailable.2
Even in Supreme Court decisions, which repeatedly employ the term “fundamental rights” to describe all of our First Amendment liberties, there is not so much as a whisper regarding the idea that fundamental rights are of the variety that the government may give or take away at its legislative or executive whim. The overwhelming view is that fundamental rights may not be taken away by government. Yes, it is true that fundamental rights are not absolute. To state an example, one may not exercise their freedom of the press to defame another person. But the right itself is beyond the power of government to eradicate entirely.
I am not saying that Supreme Court doctrine is perfect—far from it. But even in this imperfect arena, it is simply false to say that the term “fundamental right” is of recent origin, or that the term describes a species of right that may be eliminated by government whim.
1 Church and State in American History, John Frederick Wilson, et al, Westview Press (2003), 70.
2 For example, see also, Algernon Sydney, in his Discourses on Government (1698) describing the right of self-government as a “fundamental right” (No. 36); the ratification of the U.S. Constitution by the State of South Carolina employs the term “fundamental right (May 23, 1789); the dissenters from the ratification of the Constitution in Pennsylvania also use the term “fundamental right” with respect to the right to elect our representatives, “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania To Their Constituents,” Pennsylvania Packet and Daily Advertiser (18 December 1787)