On the Justification of Fundamental Constitutional Rights

Abstract

Western legal systems typically provide constitutional protection to certain interests in the form of what have come to be known as “fundamental” rights. These rights are considered fundamental in the sense that they cannot be, or are not, derived from more basic constitutional protections. Fundamental rights can, thus, roughly be thought of as foundational in the sense that they are logically independent from all other enumerated constitutional rights. This essay is concerned with what sorts of considerations would justify protecting an interest (or interests) with a fundamental constitutional right. I begin by distinguishing three kinds of right: fundamental, derived, and special rights, and then continue by identifying certain moral and epistemic considerations that are relevant with respect to justifying the protection of certain interests with a fundamental right. In particular, I will identify three different kinds of relevant consideration. Two of these considerations are moral in character: the nature of the relevant interest; and its moral value, strength, importance. The third is epistemic in character: the issue is whether we have sufficient reason to believe that the interest exists and can actually be threatened.