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This paper argues the need for a balanced approach between traditionalism (including history) and rationalism to determine fundamental rights under the Fourteenth Amendment of the U.S. Constitution. The issue of how to determine fundamental rights has intrigued the Supreme Court of the United States since 1798. The Supreme Court has desired an “objective” approach to determine what rights are “fundamental.” However, the Supreme Court has had difficulty finding an objective approach. This is because, as E.O. Wilson and Joshua Greene observed, rights are naturally subjective creations of an individual’s values. Thus, any test to determine fundamental rights will be subjective rather than objective. The debate over how to determine fundamental rights is also shaped by the rationalist and traditionalist schools of thought. Rationalists argue that fundamental rights should be determined by objective reasons, rather than history. The latter, on the other hand, argue that history still has value, and is a required component of legal analysis. Both sides of the debate bring out valid points in favor of their claims. However, neither side alone can provide a solution to the debate. As a result, what is needed is a balanced test between rationalism and traditionalism. Specifically, the test examines four factors: specificity of the right, purpose of the right, legal precedent, and history. In order for a proposed right to be fundamental, the sum of the specificity and the purpose must be greater or equal to the sum of legal precedent and history.
Susan N Elliott
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Campbell, Timothy A., "Avoiding the Guillotine: The Need for Balance and Purpose in Determining Fundamental Rights under the Fourteenth Amendment" (2016). Stander Symposium Posters. 708.
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