Inherent in the Anglo-Saxon heritage of DUE PROCESS OF LAW, the concept of fundamental rights defies facile analysis. Yet it constitutes one of those basic features of democracy that are the test of its presence. As defined by Justice FELIX FRANKFURTER, dissenting in Solesbee v. Balkcom (1950), it embraces "a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society.?" The Justice whom Frankfurter succeeded on the high bench, BENJAMIN N. CARDOZO, had spoken in Snyder v. Massachusetts (1934) of "principles of justice so rooted in the traditions and conscience of our people as to be deemed fundamental." Three years later, in PALKO V. CONNECTICUT, Cardozo articulated fundamental rights as "implicit in the concept of ORDERED LIBERTY." Because these rights are "fundamental," they have been accorded special protection by the judiciary, which has thus viewed them as PREFERRED FREEDOMS that command particularly STRICT SCRUTINY of their infringement by legislative or executive action. In other words, to pass judicial muster, laws or ordinances affecting fundamental rights must demonstrate a more or less "compelling need," whereas those affecting lesser rights need only be clothed with a RATIONAL BASIS justifying the legislative or executive action at issue.
But which among our rights fall on the "fundamental" and which on the "nonfundamental" side of constitutional protection? The Supreme Court commenced to endeavor to draw a dichotomous line in the turn-of-the-century INSULAR CASES : on the "fundamental" side now fell such rights as those present in the FIRST AMENDMENT (religion, FREEDOMS OF SPEECH, PRESS, ASSEMBLY, and PETITION) ; on the other side, styled "formal rights," fell such "procedural" rights or guarantees as those embedded in the FOURTH, FIFTH, SIXTH, SEVENTH, and EIGHTH AMENDMENTS, including, for example, TRIAL BY JURY. Justice Cardozo reconfirmed the dichotomy with his Palko division, adding to the roster of "fundamental" rights those of assigned counsel to INDIGENT defendants in major criminal trials and the general right to a FAIR TRIAL. He relegated other procedural rights to the nonfundamental sphere, noting that "justice would not perish" in the absence of such "formal rights" at the state level.
Cardozo's dichotomy did not apply to the federal BILL OF RIGHTS, which was wholly enforceable against...