hey! any law students here? i need help with a question that needs to be answered for class today. :o)?

Question

if there is a claim of a fundamental right which cannot reasonably be derived from one provisions of the bill of rights, even with 9th amendment, how is the court to determine first, that it is fundamental, and 2nd, that it is protected from abridgment?
HELP!! i am not prepared for class and totally lost...any answers/suggestions?

Answer 1

Jus cogens [fundamental or "higher" laws] (peremptory norms) need not be written or enacted. They are fundamental universal human rights -- internationally protected. Google "jus cogens" and read the Wikipedia and other entries. These rights have been enlarged over time, by common acceptance, by precedent in domestic and international courts, by multilateral treaty, by the writings of experts. By universal (or nearly universal) consensus.

Usually a court will find support for such rights in the Constitution, or in a US Supreme Court decision on the Constitution. Or in a ratified treaty (the UN Convention on the Rights of the Child; or The Hague Convention on Child Abduction -- these come to mind). The Universal Declaration of the Rights of Man is often quoted, but just by way of support and not, I think, as a basic source of law.

Answer 2

If it cannot be reasonably derived from any bill of rights provision, it is not a fundamental right and should not be protected from abridgement. The "penumbra" arguments in Griswald, and later Roe, are the creation of liberal activist judges who impute their ideological perspectives into the Constitution.

However, the problem is that your con law professor more than likely buys into this con law fallacy and supports the obvious errors of Griswald and Roe. But I would recommend taking the stance that this method of interpretation is inappropriate because what is a fundamental right is limitless, because it changes from time to time and generation to generation. Rather than look at these changing rights, one should look at the text and the rights thereby secured. Afterall, "it is a constitution we are expounding" and constitutions only change with amendments, not with liberal judges who rediscover fundamental rights.

Ohh got to go, on call in evidence.

Answer 3

A fundamental right is "one rooted in history and tradition" and/or "necessary for an ordered liberty".

So, basically, it counts as fundamental if either -- we've always done it that way, or if society would collapse if we didn't do it that way.

Remember also that fundamental rights are narrowly construed, and in the most fact-specific way. So, for example, there is no fundamental right to marry. There is a fundamental right to marry another non-relative adult of the opposite sex. Very fact specific.

Once determined to be a fundamental right, either based on prior court precedent or as analyzed above, laws which regulate that fundamental right are subject to strict scrutiny (in most cases).

Even if something is a right, but is not fundamental, it is still protected. But the court only applies rational basis review.

Answer 4

Look to precedent (the principle of stare decis). Next, can you draw any analogies between enumerated rights in the bill of rights, and this right that the plaintiff is claiming as a fundamental right? Draw them, then try to distinguish the new right you are claiming from the one that's established. Weigh the arguments, considering what is the rationale for the established right and the new right.

Read Roe v. Wade's discussion of the privacy right for an example of how this is done. Read earlier privacy cases cited by Roe v. Wade.