Concept of Fundamental Rights

Liberties that are so fundamental that the government cannot infringe upon them, absent some compelling purpose.
- E.g., family autonomy, marriage, procreation, sexual activity/orientation, and others.
State action that infringes upon or abridges these rights trigger automatic strict scrutiny.
- Government burden under strict scrutiny:
  - Articulate a compelling purpose
  - Demonstrate that the action is necessary and narrowly tailoed to achieving that purpose.
Threshold question: is the right fundamental to our ordered scheme of liberty and deeply rooted in our nation's history or tradition?
- The right must be so essential that neither liberty nor justice would exist if it were sacrificed.
- See, e.g., McDonald v. City of Chicago.
  - The right to self-defense there was seen as deeply rooted in our nation's history and tradition; thus, it was a fundamental right.
Many fundamental right are protected by both Substantive Due Process and Equal Protection.
- There is no big difference in the analysis
  - Fundamental rights under SDP focus on determining if there is a sufficient governmental purpose, whereas Equal Protection focuses on whether the government's denial of the right to certain people is justified by purpose.
The Role of the 9th Amendment Here
- Doesn't protect rights itself; rather, it justifies the existence and protection of unenumerated rights.