Such has been the norm since the Lochner era. Once “fundamental rights” were detached from the established law of the land, the Court was free to selectively incorporate its particular conceptions of rights into the due process clause. Hodges -then it took for itself the power of the states to rescind or change nondiscriminatory state constitutional clauses, statutes, and common law rules and definitions. Once the Court turned to philosophical, theoretical, or otherwise extralegal standards for determining the nature of fundamental rights, however-an approach rooted primarily in Justice Joseph Bradley’s expansive, natural rights-inspired dissent in Slaughter-House and culminating most colorfully in the majority opinion in Obergefell v. Whether depriving people of their lives, liberty, or property, or otherwise affording them protection of their legal rights, the government must apply the law equally and evenly to those who are similarly situated. The equal protection clause was a reiteration of the existing nondiscrimination principle already recognized in state due process or “law of the land” constitutional law. The privileges or immunities clause protected national-level fundamental rights from state action generally, and the due process clause protected state-level fundamental rights from discriminatory state action. If the right were truly fundamental, then the state would already be protecting it. Under the original legal meaning of the due process clause of the Fourteenth Amendment, it would be nonsensical for the federal judiciary to strike down a nondiscriminatory state law because it supposedly violated a fundamental right. Splicing rights into political, natural, social, common law, or other categories was thus unnecessary for this identification process. Race could play no role in these categorical distinctions. If within the federal or state spheres of authority, every similarly situated person or citizen could go to an appropriate court and have a right recognized and a remedy provided, then indeed that right was fundamental for the people, the citizens, or subgroups of those people or citizens (such as women). And so, the simple difference between a fundamental right and a non-fundamental right was whether it was legally and universally protectable under the law of the land. Any actions outside of the law of the land are by definition arbitrary and thus prohibited. This higher law principle was illustrated in Magna Carta: to deprive any person of his preexisting rights to life, liberty, or property, each branch of government must act within the existing law of the land. The universal “due process” or “law of the land” clauses found in the federal and state constitutions are essentially express recognitions of this hierarchical arrangement, paired with the rule of law as it applies to those exercising the powers of government. In hierarchical order, the “law of the land” is the federal or state constitutions, federal or state statutes made in pursuance of those constitutions, and the common law as recognized in the courts. In the pre- Lochner era of Fourteenth Amendment constitutional law, however, one finds a right was “fundamental” when it enjoyed two attributes: it was a preexisting right (enumerated or unenumerated), and it was universally recognizable under the law of the land. The recent and extraordinarily robust scholarly debate on the meaning of that amendment has done little to bring greater clarity to exactly which legal principles place one right instead of another into that “fundamental” category. Indeed, it is no secret that, under strict scrutiny, the expression “fundamental rights” has long been hijacked to smuggle extraconstitutional theories or personal preferences into judicial decision-making, particularly in Fourteenth Amendment constitutional law, to the detriment of state legislative power. Often there is little legal certainty in how far exactly the federal or state governments can go in establishing common-good laws that limit rights for the general benefit. Reliance upon many Supreme Court opinions would bring the inquisitor no closer to a clear definition because the case law is replete with contradictions, legally detached and precedent-built chains of inferences, historical spot-checks, and a resort to traditions not necessarily shared by all people, citizens, or governments. Drop a brick from a C-130 into a crowd of political scientists, and chances are the person you hit could not define the extent and limits of “fundamental rights” without delving into theories of democracy, the social contract, the Almighty, individual autonomy, personal identity, or perhaps the writings of a favorite philosopher.
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