Fundamental Rights: History of a Constitutional Doctrine

Fundamental Rights: History of a Constitutional Doctrine


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One of the most important modern developments in American constitutional law has been the extension of the Bill of Rights to the states. The most important guarantees of the first eight amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, along with the doctrine that these are rights that are so "fundamental" that any restriction is subject to judicial "strict scrutiny." The process has nationalized fundamental rights, giving them a preferred dignity and majesty. In this volume, the renowned constitutional scholar, Milton Konvitz, traces the development of fundamental rights from the early days of American jurisprudence through twentieth-century cases involving the right to privacy, racial discrimination, voting rights, censorship, and abortion laws.

In Konvitz's astute view, the Bill of Rights in the Constitution of the United States, like the Ten Commandments, places no priority among protected or guaranteed rights. He argues that values, ideals, rights, liberties, and privileges need to be placed in a hierarchical order or scale. The Supreme Court, acting on a case-by-case basis, has slowly and cautiously moved to designate some rights as superior to others. This idea that some rights are of a "fundamental" nature, while others are not, can be traced back to the early days of the nation's government. Konvitz shows that there may be said to be not one, but two or even three bills of rights, one for the Federal government and one for the States. Still another, may be an unwritten but evolving Bill of Rights. The Court has recognized rights or liberties that are in no written constitution, as for example, a right to marry, a right to have a family, a right to choose education of one's children in a private, even a religious, school, rather than a public school. In an illuminating fashion, Konvitz, whose writings have been cited in Supreme Court decisions, traces the controversial and very uneven line of development of such "fundamental rights."

This volume is likely the first book on the subject and a pioneering work in the history of American constitutional law. Accessibly written for a general and scholarly audience, it will be of particular interest to political scientists, historians, and constitutional scholars.

Product Details

ISBN-13: 9781412806473
Publisher: Taylor & Francis
Publication date: 02/15/2007
Pages: 192
Product dimensions: 6.00(w) x 9.00(h) x 0.45(d)
Age Range: 18 Years

About the Author

Milton R. Konvitz (1908-2003) was a professor of law and professor of industrial and labor relations at Cornell University and a fellow of the American Academy of Arts and Sciences. In addition, he was the founder of Cornell’s department of Near Eastern studies and of its program in Jewish studies. He is the author and/or editor of many important books in constitutional law, Judaic studies, and philosophy, including Liberian Code of Laws Revised, On the Nature of Value: The Philosophy of Samuel Alexander,and Nine American Jewish Thinkers.

Table of Contents

Preface     ix
The Idea of Fundamental Rights: Is There a Hierarchy of Constitutional Rights and Liberties?     1
"Every Right and Privilege Belonging to a Freeman"     21
The Bill of Rights: A Bill of Fundamental Rights     43
Where Do We Find Fundamental Rights?     61
Are There Two Bills of Rights?     89
"Liberty" Beyond the Bill of Rights     105
Fundamental Rights and Judicial Review     143
Conclusion     157
Index of Cases     167
Index of Supreme Court Justices     169
Index     175

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