Intro.2.2.4 The Constitution's Basic Principles: Individual Rights

Another important area of constitutional law is individual rights that should be protected from government interference. While the Constitution limits and diffuses powers of the federal and state governments to check government power, it also expressly protects certain rights and liberties for individuals from government interference.1 Most of these individual rights are found in the Bill of Rights, including the First Amendment's prohibition on congressional enactments that abridge the freedom of speech2 and the Second Amendment's right to keep and bear arms.3 Other rights, however, reside elsewhere in the Constitution, such as Article III's right to trial by jury in criminal cases4 and the protections found in the Civil War Era Amendments, such as the Fourteenth Amendment's Due Process and Equal Protection Clauses.5 Many of the individual rights protected by the Constitution relate to criminal procedure, such as the Fourth Amendment's prohibition against unreasonable governmental searches and seizures;6 the Fifth Amendment's right against self-incrimination;7 and the Sixth Amendment's right to trial by jury.8 While the text of the Constitution specifically enumerates many individual rights,9 other rights are anchored in the Court's interpretations of broadly worded guarantees in the founding document.10

Two notable trends characterize Supreme Court jurisprudence on individual rights in the twentieth and twenty-first centuries. First, the Supreme Court's present-day decisions addressing the Constitution's limits on government power over individuals focus on protecting individual rights of minorities from the majoritarian political process.11 Second, the Court's constitutional jurisprudence on individual rights focuses on how the Fourteenth Amendment's Due Process Clause protects certain fundamental constitutional rights found in the Bill of Rights from state government interference.12 Although the Civil War Era Amendments have served as the textual basis for the Court's decisions protecting these rights from state interference, the Court did not recognize that much of the Bill of Rights was applicable to the states until the mid-20th century.13


  1.  Jump to essay-1See Laurence H. Tribe, American Constitutional Law 10 (3d ed. 2000).
  2.  Jump to essay-2U.S. Const. amend. I.
  3.  Jump to essay-3Id. amend. II.
  4.  Jump to essay-4Id. art. III, § 2, cl. 3.
  5.  Jump to essay-5E.g., id. amend. XIV, § 1.
  6.  Jump to essay-6See, e.g., U.S. Const. amend. IV (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.).
  7.  Jump to essay-7See, e.g., id. amend. V (No person shall . . . be compelled in any criminal case to be a witness against himself . . . .).
  8.  Jump to essay-8See, e.g., id. amend. VI (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .).
  9.  Jump to essay-9See, e.g., id.amend. V ([N]or shall private property be taken for public use, without just compensation.); I, § 10, cl. 1 (No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .).
  10.  Jump to essay-10See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604–05 (2015) ([T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.).
  11.  Jump to essay-11United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); Hon. Lewis F. Powell, Jr., Carolene Products Revisited, 82 Colum. L. Rev. 1087, 1089–90 (1982) (Carolene Products was an otherwise unremarkable decision [but] Footnote 4, as interpreted by many commentators, represented a radical departure of its own. . . . Where once the Court had championed rights of property, now—according to some—it should view its special function as the identification and protection of 'discrete and insular minorities.' Where the Court before had used the substantive due process clause to protect property rights, now it should use the equal protection clause . . . as a sword with which to promote the liberty interests of groups disadvantaged by political decisions.).
  12.  Jump to essay-12See generally McDonald v. Chicago, 561 U.S. 742, 764–65 (2010) (noting that, during the 1960s, the Court shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated.); see, e.g., Duncan v. Louisiana, 391 U.S. 145, 161–62 (1968) (holding that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to trial by jury and makes it applicable to the states).
  13.  Jump to essay-13See McDonald, 561 U.S. at 764–65.