How to resolve conflicts between fundamental constitutional rights

Abstract

Overtime, especially after the Second World War, fundamental rights have gained more importance than ever. The legislatures have broadened the list, by adopting and legally protecting a wider range of fundamental rights. But more importantly, the ample interpretation of the legislation by the Courts made a much more generous contribution in establishing an immense catalogue.1 For example the United States Supreme Court has added rights through its interpretation, which were not explicitly enlisted in the Bill of Rights, such as the right to vote,2 the right to privacy3 and the right to an abortion. 4 Fundamental rights were initially adopted into the legislation to protect the individuals from the state and its powers.5 “They are designed to protect the individual from unwarranted interference in crucial aspects of her life.”6 But in time the aspect of fundamental rights have changed. Apart from the duty to respect fundamental rights of individuals, the State also carries the obligation, namely the positive obligation, to protect them from each other. “This positive obligation to provide protection presupposes the adoption of legislative, administrative, judicial and substantive measures to protect individuals against violation of their fundamental rights by other individuals. It leads necessarily to an increase in the number of actions founded on the violation of individual freedoms and as a result, to an escalation in the number of conflicts between fundamental rights.”7 The State is not only obliged to respect the fundamental rights of the individuals, but also has to protect their rights from being violated by other individuals as well.