This discussion is based on the US Constitution and laws, but would generally apply in democracies where the “rule of law” and “equal protection of individuals under the law” is followed. 


Fundamental Right:  specified in Constitution or Bill of Rights or Amendments (esp. 14), or  (when unenumerated – penumbra rights under 9th Amendment) viewed as intrinsic to ordered liberty by history and tradition.  An example of a possibly unenumerated right recognized by history as fundamental is voting (and this raises issues now).  Voting for non-whites and women did have to be specified in the Constitution. Also, sometimes certain rights for members of protected classes (like on tribal lands) may be regarded as constitutionally fundamental (most are established by statute). 

Substantive Due Process – protects fundamental rights of individuals from federal government abrogation (or from states, under incorporation doctrine from S14) under strict or heightened scrutiny rules.

Rational Basis Review –  ordinary personal liberty interests not recognized as “fundamental” may be abrogated iff government has a rational basis for intrusion.

Problems:  First amendment has several specific subcategories.  It is less clear on “freedom of reach”, or with religious speech in public places supported by public funds (indoctrination or captive audience problem)

Second amendment enumerates a right to self-defense, but clearly applies to individuals only after 2008 in DC vs. Heller.  (“militia” problem)

Many people would perceive privacy at home as an essential liberty interest even if some specific behaviors performed in private are not.

So logically substantive due process could(as a corollary) mean a state cannot pass a law to stigmatize people whom it thinks are likely to perform some behavior (like sodomy) when it has no reasonable chance to prosecute under due process of law under normal rules of evidence

This has been an important idea in my books – especially folding into early arguments in the 1990s folding into the issues of gays in the military.  A vulnerability of this idea can show up with public health issues.

But a weakness of this supposedly sensible notion of liberty interests is that the government allows conscription in some cases.  Right now, conscription of males is possible (though not practiced now).  And a few states’ abortion laws would conscript females impregnated by rape to carry babies to term at some risk to themselves. 

The “right to life” is predicated on a presumption of “personhood” (of an unborn child or in some cases of very severely disabled adults).

The Constitution does not give the Courts the authority to define personhood.  Only legislatures can do this.  (Roe was wrong in trying to do that.)   (Could lead to questions about “intelligent animals” personhood rights.)

But if an unborn baby is a “person”, aborting it may be homicide or murder, so a state may try to extend its powers regarding its residents  beyond its borders, affecting other businesses and maybe even speech interests (Internet), on a theory it could extradite for attempted homicides.

Outside of legislated ideas of personhood, the notion of “birthright” does not exist.   (It can be specified in individual cases in wills and trusts.)

That is, no one has a “right” to be born without disability, or into a family of fortunate circumstances, or with a particular race, etc.   That is impossible in nature.  (Mothers could be charged for harming their unborn however.)

The possibility of the state’s needing extreme powers after real emergency may complicate the characterization of liberty interests.   These can include foreign incursions (war, pandemic) or extreme natural disaster (like extreme solar storm), potentially a bigger issue with climate change. 

In these cases, an individual may have to be much fitter than before to survive, or the individual may have to be willing to cooperate, even intimately (or fight against political enemies with allyship), with and for those whom the individual does not “like” or approve of, in unprecedented ways.  “Doomsday prepper” thinking does have some bearing on individual rights. 

(June 29, 2022).