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.