Subsidiarity and Fundamental Rights Protection in the United States

  • Ilan Wurman Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Arizona, United States
Keywords: American constitutional law, federalism, fundamental rights, due process, subsidiarity, equality, judicial review, common values, European Union


Since the middle of the last century, fundamental rights protection in the United States has largely been the domain of the federal government, and primarily its Supreme Court. Under the Fourteenth Amendment to the United States Constitution, which guarantees “due process of law,” the United States Supreme Court has assumed for itself the role of defining fundamental rights even if such rights are not specifically enumerated in any constitutional text and requiring all states to abide by such rights, a concept referred to as “substantive due process.” It has also “incorporated” the Bill of Rights in the federal Constitution against the state governments, even though such rights historically only bound the federal government.

These doctrinal developments were likely mistakes, at least if Americans purport to be bound by the original meaning of the Fourteenth Amendment to their Constitution. “Due process of law” was not a substantive guarantee of unenumerated rights or against unreasonable legislation. In antebellum America, judicial courts did review local or municipal legislation to ensure reasonableness, but not the legislation of the states themselves except in narrow circumstances. Many American scholars believe that the “privileges or immunities” clause of the Fourteenth Amendment, instead of the due process clause, is what was intended to incorporate the Bill of Rights against the states and transfer fundamental rights protections to the federal government. This, too, is likely incorrect, as that clause was likely a guarantee merely of equality, leaving it up to the state governments otherwise to define and regulate the content of civil rights. This account, if correct, suggests that the Fourteenth Amendment, while guaranteeing the fundamental right to equality, otherwise respected the principle of subsidiarity even in the protection of fundamental rights, and provides insights for the ongoing European debate over fundamental rights protection.


Amar, A.R. (1998) The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press.

Barnett, R.E. and Bernick, E.D. (2021) The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. Cambridge, MA: Harvard University Press;

Barnett, R.E. and Bernick, E.D. (2019) 'No Arbitrary Power: An Originalist Theory of the Due Process of Law', William & Mary Law Review, 60(5), pp. 1599-1683;

Bernstein, D.E. (2011) Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Chicago: The University of Chicago Press;

Blackstone, W. (1765) Commentaries on the Laws of England. Oxford: Clarendon Press.

Bouvier, J. (1860) A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union. 10th edn.

Calabresi, S.G. and Agudo, S.E. (2008) 'Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?' Texas Law Review, 87(1), pp. 7-120.

Chapman, N.S. and McConnell, M.W. (2012) Due Process as Separation of Powers, Yale Law Journal, 121(7), pp. 1672-1807.

Coke, E. (1642) The Second Part of the Institutes of the Laws of England (photo reprint 2002). London: W. Clarke & Sons, 1817.

Cooley, T.M. (1868) A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union. Boston: Little, Brown, and Company.

Curtis, M.K. (1986) No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, NC: Duke University Press.

Dillon, J.F. (1872) Treatise on the Law of Municipal Corporations. Chicago: J. Cockcroft.

Ely, J.H. (1980) Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press;

Germain, C.St. (1761) (1518) Doctor and Student.

Gillman, H. (1993) The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University Press;

Green, C.R. (2015) Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause. Abingdon: Routledge;

Harrison, John (1992). Reconstructing the Privileges or Immunities Clause, Yale Law Journal, 101(7), pp. 1385-1474;

Helmholz, R.H. (2009) Bonham's Case, Judicial Review, and the Law of Nature, Journal of Legal Analysis, 1(1), pp. 325-354;

Lash, K.T. (2014) The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Cambridge: Cambridge University Press;

Mayer, D.N. (2009a) 'The Myth of "Laissez-Faire Constitutionalism": Liberty of Contract During the Lochner Era', Hastings Constitutional Law Quarterly, 36(2), pp. 217-284.

Mayer, D.N. (2009b) 'Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract', Mercer Law Review, 60(2) pp. 563-658.

Spieker, L.D. (2019) 'Breathing Life into the Union's Common Values: On the Judicial Application of Article 2 TEU in the EU Value Crisis', German Law Journal, 20(8), pp. 1182-1213.

Strauss, D. (2010) The Living Constitution. Oxford: Oxford University Press.

Whittington, K.E. (2013) 'Originalism: A Critical Introduction', Fordham Law Review, 82(2), pp. 375-409.

Wurman, I. (2017) A Debt Against the Living: An Introduction to Originalism. Cambridge: Cambridge University Press;

Wurman, I. (2020a) The Second Founding: An Introduction to the Fourteenth Amendment. Cambridge: Cambridge University Press;

Wurman, I. (2020b) 'The Origins of Substantive Due Process', The University of Chicago Law Review, 87(3), pp. 815-881.

How to Cite
WurmanI. (2022). Subsidiarity and Fundamental Rights Protection in the United States. Central European Journal of Comparative Law, 3(1), 241-257.