Understanding Constitutional Rights: Classification and Protection

Constitutional Rights: Classification and Protection

Classification Guarantees for Rights

The constituent power, when establishing the catalog of rights and freedoms, also establishes a classification based on their guarantees. In other words, the constitutionally established levels of protection for them. Clearly, some rights are more important than others, and it seems logical that they are subject to greater protection.

Rights with Strengthened Safeguards

These are rights to which the constitution intended to provide a kind of special armor. They usually coincide with those that common sense finds most important: the rights of personality and civil rights in general, with some exceptions. For example, the right to marriage or property are not typically included in this group.

The strengthened safeguards typically are:

• Development reserve of the right to a kind of special law (Organic Law)
• The establishment of a special procedure for summary nature protection (amparo application to the Constitutional Court)

They are identified by the name of Fundamental Rights.

Ordinary Rights Secured

Those rights that are protected by the constitutional power through an ordinary system of protection:

• Direct application of law
• Judicial protection (these rights can be protected before the courts)
• Subject to ordinary law for its regulation (i.e., they cannot be regulated by government decrees)

They are identified by the name of Constitutional Rights.

These first two groups are often referred to as Constitutional Rights.

Rights as Guidance to the Legislator or with Attenuated Guarantee

These are rights that are considered difficult or impossible to apply directly since they cannot be exercised directly. A law is needed to regulate them in order to defend them in court. It is a kind of indication to be made to constitutional laws that allow the practice of the right in question. They tend to be socio-economic rights, such as the right to housing or the right to health through a public health system.

They are identified by the name of Principles for Social and Economic Policy.

Classification of Rights by Content

Personal Rights

Those that apply and refer to the person taken in isolation. They are the most basic and elementary and coincide with the first generation of rights: the right to life, physical integrity, personal freedom, etc.

Rights of Privacy

They refer to the person in their social aspect, interacting with other people: the right to privacy, honor, self-image, secrecy of correspondence, marriage, freedom of expression, etc.

In some classifications, these two groups are merged into Civil Rights.

Political Rights

Those that contemplate the individual and groups to which they belong as actors in political action and others involved in the processes of power: the right of assembly, demonstration, association, petition, political participation, etc. These coincide with the second generation of rights.

Socio-economic Rights

These correspond with the third and fourth generations of rights. They are called economic rights (freedom of enterprise, right to social security benefits, etc.) and social rights (right to education, etc.).

The catalog of rights is not closed. New rights are emerging that are included in the different generations according to their content. Example: The right to die with dignity.