Articles
Individual Rights Under State Constitutions when
the Fourteenth Amendment Was Ratified in 1868:
What Rights Are Deeply Rooted in American
History and Tradition?
Steven G. Calabresi & Sarah E. Agudo
*
I. Introduction........................................................................................... 11
II. Methodology......................................................................................... 18
A. Collecting.......................................................................................... 19
B. Counting............................................................................................ 19
C. Categorizing...................................................................................... 21
III. The Data on State Constitutional Rights in 1868.................................. 22
A. Rights Bearing on Religion............................................................... 31
1. Establishment Clause Analogs...................................................... 31
2. Free Exercise................................................................................ 33
3. Religious Qualifications for Holding Office................................. 36
4. Specific References to God in the Preambles
of the 1868 State Constitutions..................................................... 37
5. Ceremonial Deism ........................................................................ 38
6. Blaine Amendments....................................................................... 39
7. Clauses Pertaining to Oaths......................................................... 40
8. Legislative Duty to Protect Religion............................................. 40
9. Witness Qualification on the Basis of Religion............................. 40
B. Rights of Freedom of the Press, of Speech,
of Association, and of Political Participation.................................... 41
1. Freedom of the Press.................................................................... 41
2. Freedom of Speech........................................................................ 42
3. Assembly and Petition................................................................... 43
4. Reform Government...................................................................... 44
5. Power over Government Officers ................................................. 45
* Professor Calabresi is the George C. Dix Professor of Constitutional Law at the
Northwestern University School of Law. Sarah Agudo is a member of the Northwestern University
School of Law class of 2008 and is a candidate for a Master in Public Policy at the Harvard
Kennedy School of Government. We are grateful for the helpful comments and suggestions of
Guido Calabresi, Andrew Koppelman, Kurt Lash, James Lindgren, and Eugene Volokh.
8 Texas Law Review [Vol. 87:7
6.
Libel.............................................................................................. 45
7. Suffrage......................................................................................... 46
8. Free Elections............................................................................... 46
9. One Person, One Vote .................................................................. 47
10. No Right to Secession from the Union.......................................... 47
11. Arbitrary Power............................................................................ 48
12. Federal Allegiance........................................................................ 49
C. Protection of Gun Rights and Clauses Bearing on the Military........ 49
1. State Constitutional Rights to Keep and Bear Arms..................... 50
2. The Right Not to Bear Arms.......................................................... 54
3. Clauses Subordinating the Military to the Civil Power................ 55
4. Clauses Forbidding Standing Armies........................................... 56
5. Quartering Soldiers ...................................................................... 56
D. Fourth Amendment Rights Against
Unreasonable Searches and Seizures................................................ 57
1. Search and Seizure........................................................................ 57
2. Warrants and Probable Cause ..................................................... 58
E. Criminal Procedure........................................................................... 58
1. Double Jeopardy........................................................................... 59
2. Habeas Corpus ............................................................................. 59
3. Self-incrimination ......................................................................... 60
4. Right to Counsel ........................................................................... 61
5. Speedy trial................................................................................... 62
6. Public trial.................................................................................... 62
7. Confrontation................................................................................ 63
8. Obtain Witnesses .......................................................................... 63
9. Informed of Charges..................................................................... 64
10. Other Miscellaneous Criminal Procedure Guarantees................ 64
F. Due Process....................................................................................... 65
G. Criminal and Civil Procedure Rights Borrowed
from the Original Constitution.......................................................... 68
1. Ex Post Facto Laws ...................................................................... 68
2. Retroactive Civil Laws.................................................................. 68
3. Bills of Attainder........................................................................... 69
4. Corruption of Blood...................................................................... 70
5. Impairment of Contracts............................................................... 70
6. Treason ......................................................................................... 70
H. Property Rights ................................................................................. 71
1. Takings Clauses............................................................................ 72
2. Monopolies ................................................................................... 73
3. Legal Recourse ............................................................................. 73
2008] Individual Rights Under State Constitutions in 1868 9
4.
Suits Against the State................................................................... 75
5. Property Escheat .......................................................................... 75
6. Married Women............................................................................ 75
7. Property as Supreme Right........................................................... 76
8. Suicide........................................................................................... 76
I. Juries and Grand Juries..................................................................... 76
1. Criminal Jury................................................................................ 76
2. Civil Jury ...................................................................................... 77
3. Grand Jury.................................................................................... 78
4. By Information.............................................................................. 79
5. Martial Law .................................................................................. 80
6. Trial Within the State.................................................................... 80
7. Impartial Judge............................................................................. 80
8. Jury Determines Law and Fact..................................................... 81
J. Rights Against Excessive Punishments ............................................ 81
1. Excessive Bail ............................................................................... 81
2. Excessive Fines............................................................................. 82
3. Cruel and Unusual Punishments .................................................. 82
4. Proportionality ............................................................................. 83
5. Prisoners Rights............................................................................ 84
6. Penal Principles............................................................................ 85
7. Sanguinary Laws .......................................................................... 85
8. Whipping....................................................................................... 85
9. Corporal Punishment.................................................................... 86
10. Imprisonment for Debt.................................................................. 86
11. Witness Detention......................................................................... 86
K. State Constitutional Acknowledgment of the
Existence of Unenumerated or Natural Rights ................................. 87
1. State Constitutional Law Recognition of Natural and Inalienable
Rights............................................................................................ 88
2. Fundamental Principles................................................................ 88
3. Ninth Amendment Analogs............................................................ 89
4. Tenth Amendment Analogs ........................................................... 90
5. Is the Existence of Unenumerated Natural-Law Rights
Itself Deeply Rooted in History and Tradition?............................ 91
L. Right to Travel.................................................................................. 92
1. Immigration .................................................................................. 92
2. Emigration.................................................................................... 93
3. Not Forfeit Residence ................................................................... 93
M. Equality Rights.................................................................................. 94
1. Equal Protection of the Laws Clauses.......................................... 94
10 Texas Law Review [Vol. 87:7
2.
Privileges and Immunities Clauses............................................... 96
3. Feudalism and Allodium............................................................... 97
4. Nobility ......................................................................................... 98
5. Prohibit Slavery............................................................................ 99
6. General Laws................................................................................ 99
N. State Constitutional Prohibitions of Certain Named Vices............. 100
1. Lotteries...................................................................................... 101
2. Dueling. ...................................................................................... 101
3. Alcohol........................................................................................ 102
O. Government Structure..................................................................... 103
1. Separation of Powers.................................................................. 103
2. Power to Suspend or Dispense With the Laws............................ 104
3. Taxes........................................................................................... 105
4. Right of Speech or Debate in the Legislature............................. 106
5. Privilege from Civil Process (for Legislators)............................ 106
6. Privilege from Arrest (for Legislators)....................................... 106
7. Inviolable Constitution ............................................................... 107
8. Uniform Government.................................................................. 107
P. Affirmative Rights to a Public-School Education
and to Welfare................................................................................. 108
1. Duty to Provide a Public-School Education............................... 108
2. Other Affirmative Rights to Government Aid.............................. 111
IV. A Broad Look at Rights...................................................................... 113
A. By Number of States....................................................................... 113
B. By Population ................................................................................. 114
V. Discussion........................................................................................... 114
VI. Conclusion.......................................................................................... 119
2008] Individual Rights Under State Constitutions in 1868 11
I. Introduction
Much of the academic writing about constitutional law and theory, both
in the originalist and non-originalist camps, presumes that the Constitution
protects at least some fundamental rights. Most originalists reject substantive
due process and argue alongside Justice Hugo Black and former Judge
Robert H. Bork that the only fundamental rights that are protected are the
ones enumerated in the Constitution.
1
Other originalists such as Judge
Michael McConnell have written that the Privileges or Immunities Clause of
the Fourteenth Amendment protects both enumerated and unenumerated
rights so long as those rights are deeply rooted in history and tradition.
2
The
Supreme Court has shown some sympathy to this latter approach. In
Washington v. Glucksberg,
3
the Justices declined to recognize a right to
assisted suicide because they found such a right was not deeply rooted in our
history and tradition.
4
A majority of the Court in Glucksberg thus adopted
the approach to unenumerated rights advocated by Justice Antonin Scalia
5
in
Michael H. v. Gerald D. Scalia argued for the protection of only those un-
enumerated rights that are deeply rooted in American history and tradition
when viewed at the most specific level of generality identifiable.
6
Other Supreme Court Justices have also argued for looking to history
and tradition to determine what unenumerated rights, if any, the Fourteenth
Amendment might protect. Thus, in Moore v. City of East Cleveland,
7
Justice Lewis Powell called for such an inquiry.
8
In Bowers v. Hardwick,
9
1. See Griswold v. Connecticut, 381 U.S. 479, 509–10 (1965) (Black, J., dissenting) (“I get
nowhere in this case by talk about a constitutional ‘right of privacy’ as an emanation from one or
more constitutional provisions. . . . I am . . . compelled to admit that government has a right to
invade it unless prohibited by some specific constitutional provision.”); R
OBERT H. BORK, THE
TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 118 (1990) (objecting to the
“vaporous” nature of substantive due process by arguing that “judge-created phrases specify no
particular freedom, but merely assure us, in sonorous phrases, that they, the judges, will know what
freedoms are required when the time comes”); Michael W. McConnell, The Right to Die and the
Jurisprudence of Tradition, 1997 U
TAH L. REV. 665, 666–67 (describing the originalist view of
substantive due process).
2. See McConnell, supra note 1, at 692 (“If there is any textually and historically plausible
authorization for the protection of unenumerated rights, it is to be found in [the Privileges or
Immunities] Clause . . . .”).
3. 521 U.S. 702 (1997).
4. Id. at 723.
5. Id. at 721 (“[W]e have required in substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.”); see Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (“In
an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the
interest denominated as a ‘liberty’ be ‘fundamental’ (a concept that, in isolation, is hard to
objectify), but also that it be an interest traditionally protected by our society.”).
6. Michael H., 491 U.S. at 127 n.6.
7. 431 U.S. 494 (1977).
8. See id. at 503 (“Appropriate limits on substantive due process come not from drawing
arbitrary lines but rather from careful ‘respect for the teachings of history [and] solid recognition of
12 Texas Law Review [Vol. 87:7
Justice Byron White declined to find a right to engage in sodomy in part
because such a right was not deeply rooted in history and tradition.
10
Other
Justices have said more vaguely that the only unenumerated rights the
Fourteenth Amendment protects are those that are fundamental (Justice
Frankfurter
11
) or that are implicit in the concept of ordered liberty (Justice
Cardozo
12
and the second Justice Harlan
13
). Presumably any such rights that
exist would have a long historical pedigree. It is possible but unlikely that
fundamental rights or rights implicit in the concept of ordered liberty would
not also be deeply rooted in our history and tradition.
All of this raises the question that we seek to address in this Article:
Exactly what fundamental rights did most Americans recognize and enjoy
when the Fourteenth Amendment was enacted into law in 1868? If, as Judge
McConnell argues, the Privileges or Immunities Clause of that Amendment
protects some unenumerated fundamental rights, exactly what such rights did
most Americans have in 1868? Put another way, what were the privileges or
immunities that most Americans had in 1868? To shed light on this question,
we decided to look at state constitutional law. There were thirty-seven states
in 1868 when the Fourteenth Amendment was ratified and all of them pro-
tected a list of individual rights in their constitutions. What fundamental
rights were among those that were protected under state constitutional law in
1868? Did the rights protected include all of the rights in the federal Bill of
Rights that were later incorporated to apply against the states? What about
the four rights in the Bill of Rights that have not been incorporated? Were
those rights protected under state constitutional law in 1868? Did any states
in 1868 protect a right to privacy or to bodily autonomy or to freedom in
matters of sexuality?
We will not seek to claim here that the question of what unenumerated
rights, if any, the Fourteenth Amendment protects can be definitively an-
swered solely by looking at state constitutional law in 1868, but we do think
such an inquiry can help shed light on that question. There are clearly a
number of fundamental rights, such as the liberty of contract and the rights to
own and inherit property, that were protected at common law but for some
reason never found their way into state constitutions. So long as those rights
were very deeply rooted in our history and tradition, they may be among the
rights Justice Bushrod Washington had in mind when he talked about which
the basic values that underlie our society.’” (quoting Griswold v. Connecticut, 381 U.S. 479, 501
(1965) (Harlan, J., concurring) (alteration in original)).
9. 478 U.S. 186 (1986).
10. Id. at 192 (“It is obvious to us that [there is no] fundamental right [of] homosexuals to
engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots.”),
overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
11. Louisiana v. Resweber, 329 U.S. 459, 469–70 (1947) (Frankfurter, J., concurring).
12. Palko v. Connecticut, 302 U.S. 319, 324–25 (1937).
13. Griswold, 381 U.S. at 500 (Harlan, J., concurring in the judgment); Poe v. Ullman, 367 U.S.
497, 549 (1961) (Harlan, J., dissenting).
2008] Individual Rights Under State Constitutions in 1868 13
fundamental privileges or immunities were protected by Article IV, Section
Two of the Constitution in his celebrated but vacuous opinion in Corfield v.
Coryell.
14
(Corfield clearly inspired the framers of the Fourteenth
Amendment even if the decision seems to offer little guidance to us today.)
15
But all of that is a subject for another day. What we seek to assert here is
that if one assumes, as the Court did in Glucksberg, that the Fourteenth
Amendment protects only those rights that are deeply rooted in history and
tradition, then one plausibly good place to look for such rights is in state con-
stitutions in 1868—the year the Fourteenth Amendment was ratified. Such
an inquiry could even be said to shed light on the original public meaning of
the Privileges or Immunities Clause, which may underpin the modern
doctrine of substantive due process.
16
The Supreme Court in recent years has frequently done nose counts or
tallies of state law to determine the evolving meaning of the Eighth
Amendment prohibition on cruel and unusual punishment. Recently, in
Roper v. Simmons,
17
the Court overruled its decision in Stanford v.
Kentucky
18
and found the death penalty for sixteen- and seventeen-year-olds
to be unconstitutional.
19
The Court reached this conclusion in 2005 because
thirty states had decided to outlaw the death penalty for juveniles
20
as com-
pared to only twenty-five states that had outlawed that penalty in 1989.
21
The Court also recently did a nose count of states in Atkins v. Virginia,
22
where it held that the death penalty for the mentally impaired had become
cruel and unusual punishment.
23
By the time of the Atkins decision, thirty
14. 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230) (describing fundamental rights as
those involving “[p]rotection by the government, the enjoyment of life and liberty, . . . the right to
acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject
nevertheless to such restraints as the government may justly prescribe for the general good of the
whole”).
15. See J
OHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 28
(1980) (“[T]he framers of the Fourteenth Amendment adverted repeatedly to an interpretation given
its Article IV counterpart by Justice Washington, sitting alone on Circuit, in the 1823 case of
Corfield v. Coryell.”).
16. See McConnell, supra note 1, at 693–96 (exploring the meaning the framers of the
Fourteenth Amendment intended for the Privileges or Immunities Clause by examining court
doctrine prevailing at the time the Amendment was written).
17. 543 U.S. 551 (2005).
18. 492 U.S. 361 (1989).
19. Roper, 543 U.S. at 568 (“A majority of States have rejected the imposition of the death
penalty on juvenile offenders under 18, and we now hold this is required by the Eighth
Amendment.”).
20. Twelve states had outlawed the death penalty altogether, and an additional eighteen had
maintained it for adults only. Id. at 564.
21. See id. at 565. Roper makes it clear that thirty states had eliminated the juvenile death
penalty by 2005, and between 1989 and 2005, five additional states eliminated the juvenile death
penalty. Id.; see also Stanford, 492 U.S. at 370 (finding that, as of 1989, thirteen states prohibited
the death penalty entirely and twelve declined to impose it on anyone under eighteen).
22. 536 U.S. 304, 314–15 (2002).
23. Id. at 321.
14 Texas Law Review [Vol. 87:7
states had abolished the death penalty for the mentally impaired.
24
The
decision overruled the Court’s 1989 decision in Penry v. Lynaugh,
25
where it
had upheld the death penalty for the mentally impaired because, at that time,
only sixteen states had outlawed that penalty.
26
The Supreme Court has also
done nose counts of states in holding the death penalty unconstitutional for
rape
27
and for felony murder.
28
Most recently, in 2008, the Court did a nose
count of states in Kennedy v. Louisiana
29
to support its determination that
imposing the death penalty for child rape is unconstitutional.
30
In each of the above cases, the Court analyzed the case at hand as if the
text of the Eighth Amendment—not the Fourteenth—was at issue, even
though the cases all arose under the Fourteenth Amendment. Using a nose
count of states is more straightforward under the words of the Eighth
Amendment because the text of the Cruel and Unusual Punishment Clause
arguably calls explicitly for a nose count of states by requiring an inquiry
into whether a punishment has become “unusual.” It would be hard to an-
swer that question without doing something like a nose count of state laws
unless one wanted to argue that only punishments that were unusual in 1791
are forbidden. The Fourteenth Amendment is not so explicit. Strikingly,
neither of the originalist Justices on the Supreme Court has been willing to
rely solely on the original meaning of the words cruel and unusual in Eighth
Amendment cases. They have both followed Chief Justice Warren’s plural-
ity opinion in Trop v. Dulles
31
when dissenting from recent decisions
invalidating death penalty laws not because of the meaning the word
“unusual” had in 1791 but because of the meaning that word has in enacted
state law today.
32
Focusing on current state constitutional law to determine what rights are
deeply rooted in our history and tradition as a matter of substantive due pro-
cess would obviously be mistaken. That being said, the Court did take
account of recent changes in state law when it found a right to engage in sod-
omy in Lawrence v. Texas
33
—a case that Professor Calabresi has criticized as
24. See supra note 21.
25. 492 U.S. 302 (1989).
26. Id. at 334, 340.
27. See Coker v. Georgia, 433 U.S. 584, 595–96 (1977) (finding that Georgia was the only state
that permitted the imposition of the death penalty for the rape of an adult woman).
28. See Enmund v. Florida, 458 U.S. 782, 792–93 (1982) (reasoning that the fact that “only a
small minority of jurisdictions—eight—allow the death penalty to be imposed [for felony
murder] . . . weighs on the side of rejecting capital punishment for the crime at issue”).
29. 128 S. Ct. 2641, 2651–52 (2008).
30. Id. at 2646.
31. 356 U.S. 86 (1958) (plurality opinion).
32. See, e.g., Roper v. Simmons, 543 U.S. 551, 609 (2005) (Scalia, J., dissenting) (stating,
along with Justice Thomas, that “words have no meaning if the views of less than 50% of death
penalty States can constitute national consensus”).
33. 539 U.S. 558, 569–70 (2003).
2008] Individual Rights Under State Constitutions in 1868 15
having been wrongly decided.
34
But a nose count of what rights were
protected under state constitutions in 1868 when the Fourteenth Amendment
was adopted would arguably be at least relevant to the historical question of
what rights are deeply rooted in our history and tradition. It could be used to
shed light on the original public meaning of the Privileges or Immunities
Clause. It certainly sheds light on what rights are deeply rooted in history
and tradition for substantive-due-process purposes—an inquiry that the
Supreme Court’s opinion in Washington v. Glucksberg seems to call for.
This is important because the Supreme Court cites Glucksberg approvingly
twice in Gonzales v. Carhart,
35
which is its most recent substantive-due-
process decision.
We will make no normative claims in this Article about the significance
for federal constitutional law today of our tally of state constitutional rights
in 1868. Instead, we intend simply to positively describe state constitutional
law at that time. Some may argue that the determination of what fundamen-
tal rights are protected by the Privileges or Immunities Clause of the
Fourteenth Amendment or by substantive due process ought not to be ac-
complished by examining state constitutional law either in 1868 or today.
These critics might say either that it is up to the Justices of the Supreme
Court to say what fundamental rights the Fourteenth Amendment protects or,
as Bork claims, that the Fourteenth Amendment protects only the rights in
the Bill of Rights and nothing more.
36
Assume for a moment, for the sake of argument, that the Privileges or
Immunities Clause of the Fourteenth Amendment protects unenumerated
rights that are fundamental, but that those rights can be overcome by a rea-
sonable exercise of the police power, as Justice Washington’s opinion in
Corfield explicitly says.
37
Would not an examination of state constitutional
law in 1868 give you a rough picture of what individual rights people had
such that exercise of the police power to overcome them would be unreason-
able? We think it would. The Corfield opinion clearly implies that there are
34. Steven G. Calabresi, Lawrence, the Fourteenth Amendment, and the Supreme Court’s
Reliance on Foreign Constitutional Law: An Originalist Reappraisal, 65 O
HIO ST. L.J. 1097, 1102
(2004).
35. 550 U.S. 124 (2007).
36. See B
ORK, supra note 1, at 236 (arguing that the only defensible view is that “aside from
incorporating the Bill of Rights, the due process clause of the fourteenth amendment was entirely a
procedural guarantee and gave the Court no substantive powers”); see also E
THAN BRONNER,
BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA 296 (1989). Bronner
provides the testimony of Laurence Tribe, who stated that if Bork had been confirmed as the 106th
Justice of the Supreme Court, he would have been the
first to read liberty as though it were exhausted by the rights the majority expressly
conceded individuals in the Bill of Rights. He would be the first to reject an evolving
concept of liberty and to replace it with a fixed set of liberties protected at best from an
evolving set of threats.
Id.
37. Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230).
16 Texas Law Review [Vol. 87:7
unenumerated individual rights that are deeply rooted in history and tradition
and constitutionally protected, but that can be overcome by general laws en-
acted for the good of the whole people. Transposed to the Fourteenth
Amendment, this analysis could be understood to ask the Justices to do what
they did in Lochner v. New York
38
and separate out reasonable from
unreasonable exercises of the police power.
39
What better way to figure out
which exercises of the police power the framers of the Fourteenth
Amendment would have thought were reasonable or unreasonable at the
constitutional level than by looking at state constitutions in 1868? If the
Fourteenth Amendment commands that state laws be reasonable as Lochner
said—and that is a very big if—why not look for the answer to that question
in state constitutions in 1868? Surely that is more principled than the alter-
natives of either deferring to any state law so long as it is barely rational or
giving the elite, life-tenured Justices of the Supreme Court the power to
create new individual fundamental rights.
But whatever one concludes normatively, it is surely clear that a
summary of individual rights under state constitutional law in 1868 is at least
interesting as a matter of our constitutional history. That is the premise that
underlies our Article, and it is for that reason that we present here a tally of
what individual rights were protected—and to what degree—under state
constitutions in 1868.
We placed the protected rights in five categories. The first category
consists of those individual rights that were recognized by three-quarters or
more of the states in 1868. These rights would seem to be especially deeply
rooted in history and tradition because three-quarters is the number of states
that Article V sets as the threshold consensus necessary for the making of
federal constitutional law. The “rule of recognition” under Article V is two-
thirds of both houses of Congress and three-quarters of the states.
40
Arguably, rights protected by less than three-quarters of the states in 1868
were not believed to be fundamental and are not deeply rooted in history and
tradition. Some, however, will undoubtedly feel that a consensus of three-
quarters of the states in 1868 sets the bar way too high, so we also look at
four lesser degrees of consensus. Accordingly, we also asked how many in-
dividual rights were protected by two-thirds of the states; how many were
recognized by a simple majority; how many were recognized by one-quarter
or more; and finally, how many rights were recognized by less than one-
quarter of the states in 1868. In so doing, we hope to present our data in a
38. 198 U.S. 45 (1905).
39. See id. at 53–56 (chronicling precedent that defined the reasonable exercise of police
power).
40. See generally H.L.A.
HART, THE CONCEPT OF LAW 94–95 (2d ed. 1994) (introducing the
concept of a “rule of recognition,” meaning a feature of a given rule that acts as an affirmative
indication that the rule is generally supported).
2008] Individual Rights Under State Constitutions in 1868 17
form that will allow others to more readily make whatever normative claims
they want to make about the significance of our findings.
In addition to determining what rights were protected by which state
constitutions in 1868, we have also asked what percentage of the American
people at that time lived in states that protected each specific right. In other
words, for example, if right X was protected by three-quarters of the states in
1868, we have determined what percentage of Americans living in 1868
lived in the states where right X was protected. This number obviously could
be higher or lower than 75% of the national population at that time. Article
V of the federal Constitution requires a consensus of two-thirds of both
houses of Congress in addition to three-quarters of the states to make federal
constitutional law. The requirement that two-thirds of the popularly elected
House of Representatives concur before federal constitutional law can be
made reflects the idea that no new constitutional law ought ever to be fash-
ioned without supermajority support among the population as well as
supermajority support among the states. By looking at populations living in
states where certain rights are protected, we allow future authors to take ac-
count of this concern.
Third, we have looked at three major regions of the United States—the
Northeast, the South, and the Midwest–West—to see if certain rights were
more widely recognized in one region or another in 1868.
41
Finally, we have
grouped state constitutions into constitutions that were older in 1868 (i.e.,
those that were promulgated before 1855) and those that were more recent
(i.e., those that went into effect after 1855). Arguably a right that was only
thirteen years old in 1868 might not yet have been viewed as fundamental.
Charting the rise and fall of references to rights over time may be relevant to
the question of what rights the Supreme Court ought to recognize today. We
picked 1855 as the dividing line between old and new state constitutions be-
cause half of the thirty-seven state constitutions were ratified before 1855,
and half of them were ratified after 1855. This symmetry allowed us to more
easily compare trends.
Supreme Court Justices diverge on the question of how to determine
what rights are fundamental for substantive-due-process purposes, but the
prevalence of rights in state constitutional law over time could, at least in
theory, provide a rough benchmark of how deeply rooted a right is. The
rights in the federal Constitution closely track those in state constitutions,
41. We grouped the Midwestern and Western states together in our analysis because there were
only three Western states in 1868: California, Nevada, and Oregon. Our initial calculations for the
West, which was analyzed separately from the Midwest, were not terribly probative because of the
small sample size. In other words, the fact that there were only three states made it difficult to
generalize about “the West” in a meaningful way. Combining the Midwestern and Western states
provides the benefit of more valid generalizations about trends in constitutional rights at the cost of
potentially losing some interesting information about actual variations between these two regions.
Separate data on the West and Midwest were retained by the authors and can be made available
upon request.
18 Texas Law Review [Vol. 87:7
and many Americans have lived for centuries with these rights and come to
regard them as enduring guarantees. There are those who think that the law
is what it has been in practice over a long period of time.
42
One may dis-
agree with that Burkean view, but it must surely be the case that a right or
practice that was widespread 140 years ago and that remains enshrined in
Supreme Court Fourteenth Amendment case law today is an unlikely candi-
date to be struck down anytime soon. Rights, such as freedom of speech, that
were protected by all thirty-seven state constitutions in 1868—and are still
protected today—would seem to us to be at least plausible candidates for
protection as fundamental rights under the Fourteenth Amendment.
This Article then provides a list of all of the individual rights (and a few
of the structural limits on government enacted for the particular benefit of
individuals) that were enumerated in the thirty-seven individual state consti-
tutions in place in 1868. In total, an astonishing 102 different rights were
guaranteed by the states at that time. Uncovering and categorizing these
rights allows a fascinating picture of American liberties to emerge. Both the
unanticipated degree of consensus and the telling divergences between states
provide fodder for modern debates as to the scope of fundamental constitu-
tional rights. We think this information is potentially useful in understanding
substantive due process, in predicting the fate of the few remaining incorpo-
ration questions (because incorporation has occurred through substantive due
process
43
), in reframing our thinking about clauses assumed to be purely con-
cerned with federalism,
44
or simply in more vividly depicting American
citizenship in 1868 and shedding light on American legal history. Our core
aim, however, is to provide a descriptive account of what the evidence here
shows and not to make any normative claims as to what the evidence implies.
That is a question we will leave for another day.
II. Methodology
Because our historical analysis here depends on the accuracy and
thoroughness with which we have compiled our data, it is appropriate to start
42. See, e.g., Thomas W. Merrill, Bork v. Burke, 19 HARV. J.L. & PUB. POL’Y 509, 511, 510–11
(1996) (arguing for a mode of jurisprudence of Burkean conventionalism by which judges should
interpret text by seeking out “not the original meaning but the conventional meaning—the
consensus view about the meaning in the legal community of today”); Cass R. Sunstein, Burkean
Minimalism, 105 M
ICH. L. REV. 353, 356, 355–56 (2006) (noting that some individuals believe that
courts should be “closely attentive to entrenched practices” when construing the Constitution).
43. See, e.g., Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First
Amendment rights of free speech and free press). The rights in the Bill of Rights that have not been
incorporated include the Second Amendment right to bear arms, the Third Amendment protection
against quartering soldiers, the Fifth Amendment right to a grand jury, and the Seventh Amendment
right to a jury in civil trials.
44. See, e.g., A
KHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 20–
22, 32–42, 119–24 (1998) (describing, for example, the rights of speech and press; the protection
against state establishment of religion; and the Ninth and Tenth Amendments [the “popular
sovereignty” Amendments] as purely or primarily populist, federalist protections).
2008] Individual Rights Under State Constitutions in 1868 19
by providing a detailed account of the method used to generate the results
reported below. This method involved three steps: collecting, counting, and
categorizing.
A. Collection
The first step was to obtain copies of the thirty-seven state constitutions
that were in effect in 1868, the year the Fourteenth Amendment to the United
States Constitution was ratified and declared to be part of the Constitution.
We chose to look at the state constitutions that were closest in time to 1868
without being later. For example, if a state passed constitutions in 1860 and
1870, we used the 1860 constitution for our analysis even though 1870 was
closer in time to 1868. The reason is that we wanted to understand what
rights the people of each state were legally entitled to as a matter of positive
state law at the time the Fourteenth Amendment was drafted and enacted.
45
Next we both separately and jointly examined each state constitution
closely, and we then coded each right or clause denying a right
46
into a
comprehensive database. We recorded the data by state, by the year in which
the constitution was adopted, and by the location of the right or denial of a
right within the constitution, and we included the entire positive-law consti-
tutional text that recognized the right or denied the right in question. The
data were then grouped by individual, state constitutional rights, so that
similar rights from the thirty-seven states that were members of the Union in
1868 could be grouped together. The authors then thoroughly reviewed the
complete database to ensure its accuracy.
47
B. Counting
We then counted the number of state constitutions that textually
enumerated each individual right or denial of a right. We calculated the
number of states, out of thirty-seven, needed to constitute, respectively,
45. This sometimes led to the use of constitutions that were ratified much earlier than the
others. See, e.g., C
ONN. CONST. of 1818. Despite potential differences that are a direct function of
being ratified in different eras, we felt that it was important not to use constitutions that were not in
place in 1868. However, to draw out these potential differences, part of our analysis involved
comparing the newer constitutions with the older ones.
46. In addition to individual rights, we also coded clauses that contained relevant structural
limitations (e.g., requirements that state governments act only consistently with the separation of
powers, and Ninth Amendment analogs) where those structural limitations were most obviously
designed to protect individual rights. We also noted the absence of, for example, a right to gamble
or to duel, reflected by constitutional clauses that banned lotteries or dueling. Finally, we counted
specific constitutional acknowledgments of rights, such as the right to bring a libel suit, that the
Supreme Court has found in modern times to be constrained by the First Amendment. N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 278–79 (1964). Our coding thus takes account not only of rights
recognized under positive state constitutional law in 1868 but also of rights that might have been
recognized but were not.
47. See Individual Rights Appendix (on file with authors), available at http://www.utexas.edu/
law/journals/tlr/issues/archive. From the Texas Law Review archives home page, click the link for
Volume 87, then the link for Issue 1. From there, click the link for this Article.
20 Texas Law Review [Vol. 87:7
three-quarters of the thirty-seven states in the Union in 1868, two-thirds of
those states, a majority of those states, one-quarter of those states, and less
than one-quarter of those states. We then grouped the rights into each of
these five categories. The idea underlying this nose count of states was that
the larger the number of states that recognized a right, the more likely it was
that the right was considered to be fundamental in 1868 and thus that it is
deeply rooted in our history and tradition. Because of the enormous amount
of data involved, we looked only at rights textually enumerated in state con-
stitutions and not at state court opinions construing those clauses. That
project would be a valuable, if not essential, one to undertake in the future.
We also created other groupings to shed light on the question of what
rights were deemed to be fundamental in 1868 such that they might today be
considered to be deeply rooted in our history and tradition. Thus, as men-
tioned above, we calculated what percentage of the total U.S. population at
the time lived in states where the particular constitutional guarantee in ques-
tion was recognized.
48
We also sorted the rights according to geographic
region—Northeast, South, and Midwest–West.
49
We wanted to know, for
example, whether gun rights were recognized more widely in some geo-
graphic regions in 1868 than in others. This might go to the question of
whether there was a broad federal consensus recognizing a particular right.
Finally, as mentioned above, we sorted the rights by date of enactment
of the relevant state constitution to figure out which state constitutional rights
were relatively “new” in 1868 and which were “old.” This allowed us to de-
termine whether each right became more or less pervasive in the years
leading up to 1868. It seemed important to us to separate out those state con-
stitutional rights that were relatively new in 1868 from those that dated back
to the founding of the republic. Arguably, a constitutional right that three-
quarters of the states recognized in 1868 might not have been deemed to be
48. This was done by obtaining a population census from 1870 for each state and multiplying
the states in which each right was guaranteed by their respective populations. In 1870, there were
38,115,641 people in the United States. The breakdown of population by state was as follows:
Alabama, 996,992; Arkansas, 484,471; California, 560,247; Connecticut, 537,454; Delaware,
125,015; Florida, 187,748; Georgia, 1,184,109; Illinois, 2,539,891; Indiana, 1,680,637; Iowa,
1,194,020; Kansas, 364,399; Kentucky, 1,321,011; Louisiana, 726,915; Maine, 626,915; Maryland,
780,894; Massachusetts, 1,457,351; Michigan, 1,184,059; Minnesota, 439,706; Mississippi,
827,922; Missouri, 1,721,295; Nebraska, 122,993; Nevada, 42,491; New Hampshire, 318,300; New
Jersey, 906,096; New York, 4,382,759; North Carolina, 1,071,361; Ohio, 2,665,260; Oregon,
90,923; Pennsylvania, 3,521,951; Rhode Island, 217,353; South Carolina, 705,606; Tennessee,
1,258,520; Texas, 818,579; Vermont, 330,551; Virginia, 1,225,163; West Virginia, 442,014;
Wisconsin, 1,054,670. Univ. of Va. Library, Historical Census Browser, http://fisher.lib.virginia.
edu/collections/stats/histcensus/php/start.php?year=V1870.
49. The categorization of states by region is as follows: Northeast (ten states, population
12,423,745)—Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New
York, Pennsylvania, Rhode Island, Vermont; Midwest–West (twelve states, population
11,939,296)—California, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Nebraska, Nevada,
Ohio, Oregon, Wisconsin; and South (fifteen states, population 13,752,600)—Alabama, Arkansas,
Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South
Carolina, Tennessee, Texas, Virginia, West Virginia.
2008] Individual Rights Under State Constitutions in 1868 21
fundamental if the only state constitutions recognizing that right were merely
thirteen years old at the time. Alternatively, one could argue that a right that
was recognized by a consistently increasing number of states is more deeply
rooted than a right that became less pervasive over time.
50
C. Categorizing
We found a very large number of individual positive-law rights under
state constitutional law in 1868. Because we found so many rights that were
recognized, we thought it necessary to group the rights into substantive cate-
gories for purposes of presenting our results below. We ended up grouping
the rights in question into the following sixteen categories: (1) rights involv-
ing religion, including establishment-clause and free-exercise-clause rights;
(2) rights of political participation, including freedom of the press, freedom
of speech, and rights to assemble, associate, and petition; (3) rights involving
access to guns or bearing in some way on the military, such as rights con-
ferred by forbidding the quartering of soldiers in private homes or by
banning standing armies; (4) individual rights to a particular kind of govern-
ment structure, such as a guarantee that no official shall exercise at the same
time legislative, executive, and judicial powers; (5) rights analogous to those
protected by Article I, Section Ten of the federal Constitution, such as rights
to be free from ex post facto laws, bills of attainder, or laws impairing the
obligation of contracts; (6) rights analogous to those in the federal Fourth
Amendment protecting, for example, against unreasonable searches and
seizures; (7) rights analogous to the various other criminal-procedure
guarantees of the federal Bill of Rights; (8) rights analogous to the federal
Eighth Amendment prohibitions on excessive fines, bail, and the imposition
of cruel and unusual punishments; (9) rights to jury trials in criminal or civil
cases and to grand juries for indictment; (10) clauses protecting rights to pri-
vate property in any way; (11) rights akin to what we know today as equal
protection of the laws; (12) rights to not be deprived of life, liberty, or prop-
erty without due process of law; (13) rights to travel either into or out of a
particular state; (14) rights to an education in a public school or to other
forms of positive government assistance or welfare that were implied by the
imposition of an obligatory duty on the state to provide the benefit in
question; (15) clauses discussing what were regarded in 1868 as prohibitable
vices; and finally, and most tellingly, (16) arguable recognitions in positive
state constitutional law in 1868 of natural law as a source of rights.
These groupings are intended to make the information presented
below more accessible, and we do not mean to suggest or imply any
normative arguments for the underlying importance or meaning of the rights
by the categorizations we have used here. We recognize that many of the
50. See Roper v. Simmons, 543 U.S. 551, 566 (2005) (“‘It is not so much the number of these
States that is significant, but the consistency of the direction of change.’” (quoting Atkins v.
Virginia, 536 U.S. 304, 315 (2002))).
22 Texas Law Review [Vol. 87:7
rights we discuss here could easily be argued to fall into several of the cate-
gories, or even into new categories, depending on the interests and the
understanding of the reader. Here, then, are our findings.
III. The Data on State Constitutional Rights in 1868
The sixteen different categories in which we found individual,
positive-law state constitutional rights appear below. For each right, we
discuss: (1) how many states recognized the right; (2) what proportion of the
total population lived in states recognizing the right; (3) regional variations in
the recognition of the right; and (4) which rights were relatively new in 1868
and which were older and more established. For each right, where possible,
we try to provide sample language typically used to describe or declare the
right. For each right, there is a corresponding appendix that contains the full
text of each constitution’s relevant clause granting that right.
51
These are
grouped loosely according to the sixteen topics they address.
The following graphs summarize some of our most important or
striking findings.
51. The full appendix is on file with the authors and with the Texas Law Review. See supra
note 47.
2008] Individual Rights Under State Constitutions in 1868 23
Figure 1: State Rights with Federal Analogs (by Number of States)
0 4 8 12 16 20 24 28 32 36
Privileges & Immunities
9th Amend. Analogs
Grand Jury
Equal Protection
Bear Arms
Public Trial
Reform Gov.
Quarter Soldier
Establishment
Due Process
Speedy Trial
Informed Charges
Double Jeopardy
Freedom of Speech
Confrontation
Takings
Search & Seizure
Assembly & Petition
Counsel
Cruel & Unusual
Self Incrim.
Excessive Fines
Warrants & Prob. Cause
Jury Trial–Crim.
Jury Trial–Civil
Free Press
Excessive Bail
Free Exercise
State Constitutional Rights
Number of States
1/2 3/42/3
24 Texas Law Review [Vol. 87:7
Figure 2: State Rights with Federal Analogs (by Population)
0 102030405060708090100
9th Amend. Analogs
Privileges & Immunities
Equal Protection
Grand Jury
Public Trial
Bear Arms
Reform Gov.
Establishment
Quarter Soldier
Informed Charges
Due Process
Speedy Trial
Search & Seizure
Confrontation
Double Jeopardy
Warrants & Prob. Cause
Counsel
Cruel & Unusual
Self Incrim.
Takings
Free Press
Excessive Fines
Assembly & Petition
Jury Trial–Civil
Jury Trial–Crim.
Excessive Bail
Free Exercise
Freedom of Speech
State Constitutional Rights
Percent of Population
1/2 3/42/3
2008] Individual Rights Under State Constitutions in 1868 25
Figure 3: State Rights Without Federal Analogs (by Number of States)
0 4 8 12162024283236
Proportionality
Public Institutions
Free Elections
Suspend Laws
Not Bear Arms
Standing Armies
Dueling
Lottery
Be Heard
Natural & Inalienable
Obtain Witnesses
God in Preamble
Ceremonial Deism
Subordinate Military
Public Education
State Constitutional Rights
Number of States
1/2 3/42/3
26 Texas Law Review [Vol. 87:7
Figure 4: State Rights Without Federal Analogs (by Population)
0 102030405060708090100
Proportionality
Public Institutions
Suspend Laws
Free Elections
Standing Armies
Not Bear Arms
Lottery
Dueling
Natural & Inalienable
Obtain Witnesses
God in Preamble
Be Heard
Subordinate Military
Ceremonial Deism
Public Education
State Constitutional Rights
Percent of Population
1/2 3/42/3
2008] Individual Rights Under State Constitutions in 1868 27
Figure 5: Time Trends of State Rights with Federal Analogs
0 102030405060708090100
9th Amend. Analog
Equal Protection
Privileges & Immunities
Religious Qualification
Free Speech
Cruel & Unusual
Excessive Fines
Due Process
Counsel
Warrants & Prob. Cause
Jury Trial–Crim.
Grand Jury
Double Jeopardy
Free Exercise
Free Press
Excessive Bail
Bear Arms
Search & Seizure
Self Incrim.
Public Trial
Confrontation
Jury Trial–Civil
Informed of Charges
Establishment
Assembly & Petition
Speedy Trial
Takings
Quarter Soldiers
State Constitutional Rights
Percent of Total Created
Pre-1855 Constitutions Post-1855 Constitutions
28 Texas Law Review [Vol. 87:7
Figure 6: Time Trends of State Rights Without Federal Analogs
0 102030405060708090100
Public Institutions
Dueling
Lottery
God in Preamble
Public Education
Standing Armies
Obtain Witnesses
Subordinate Military
Not Bear Arms
Ceremonial Deism
Reform Gov.
Natural & Inalienable
Proportionality
Suspending Laws
Free Elections
Be Heard
State Constitutional Rights
Percent of Total Created
Pre-1855 Constitutions Post-1855 Constitutions
2008] Individual Rights Under State Constitutions in 1868 29
Figure 7: Regional Trends in State Rights with Federal Analogs
0
10
20
30
40
50
60
70
80
90
100
Free Speech
Excessive Bail
Jury Trial–Crim.
Jury Trial–Civil
Counsel
Assembly & Petition
Takings
Free Exercise
Warrants & Prob. Cause
Search & Seizure
Confrontation
Speedy Trial
Informed of Charges
Excessive Fines
Self Incrim.
Due Process
Cruel & Unusual
Quarter Soliders
Double Jeopardy
Establishment
Free Press
Bear Arms
Public Trial
Religious Qualification
Grand Jury
9th Amend. Analog
Equal Protection
Privileges & Immunities
State Constitutional Rights
Percent in Each Region
Northeast South Midwest–West
30 Texas Law Review [Vol. 87:7
Figure 8: Regional Trends in State Rights Without Federal Analogs
0
10
20
30
40
50
60
70
80
90
100
Public Education
Subordinate Military
Ceremonial Deism
Natural & Inalienable
Be Heard
Reform Gov.
God in Preamble
Obtain Witnesses
Standing Armies
Suspending Laws
Free Elections
Not Bear Arms
Lottery
Proportionality
Dueling
Public Institutions
State Constitutional Rights
Percent in Each Region
Northeast South Midwest–West
2008] Individual Rights Under State Constitutions in 1868 31
A. Rights Bearing on Religion
The first of our sixteen categories of rights found in the thirty-seven
state constitutions in 1868 are rights bearing on the subject of religion. This
is appropriate because the religion clauses of the federal First Amendment
are the first rights to appear in the federal Bill of Rights.
52
Religious freedom
had been a central issue in the English Glorious Revolution of 1688,
53
and it
was of central concern to the framers and ratifiers of the federal Bill of
Rights as well.
54
It occupied a similarly exalted status in state bills of rights
in 1868. The Free Exercise Clause was first applied to the states through its
incorporation into the Fourteenth Amendment as a matter of substantive due
process in Cantwell v. Connecticut in 1940.
55
The Establishment Clause was
first incorporated and applied to the states as a matter of substantive due
process in Everson v. Board of Education in 1947.
56
However, we found that
most states already included analogs to both clauses in their state constitu-
tions well before the Supreme Court incorporated them.
57
Such widespread
replication of First Amendment rights at the state level in 1868 might suggest
that the rights embodied in the First Amendment are fundamental. The
question of their scope and meaning, in both state constitutions and our fed-
eral Constitution, is still largely up for debate.
58
1. Establishment Clause Analogs.—Twenty-seven states—or two-thirds
of the thirty-seven states that formed the United States in 1868—had clauses
in their constitutions that, in our view, explicitly prohibited the establishment
52. The First Amendment of the Bill of Rights was actually the third of twelve amendments
proposed by Congress. See
AMAR, supra note 44, at 20 (“The First Congress’s first two proposed
amendments offer an illuminating perspective on its Third (our First) Amendment.”). The first two
were not ratified in 1791 but the last ten were. Id. at 8. Those ten amendments then became the Bill
of Rights. One of the two unratified amendments was subsequently ratified in 1992 and became the
Twenty-Seventh Amendment of the Constitution. Id. at 17. It could thus be argued that the
Congress that proposed the Bill of Rights did not intend religious rights to come first. Of course, it
can be equally well maintained that the ratifiers of the Bill of Rights disagreed, and that they
determined that religious rights would come first. In any event, for whatever reason, it is a fact that
the Bill of Rights, which Americans have venerated for two centuries, begins with rights bearing on
religious freedom.
53. E
NCYCLOPEDIA OF RELIGIOUS FREEDOM 115–16 (Catharine Cookson ed., 2003).
54. C
ONSTITUTIONAL DEBATES ON FREEDOM OF RELIGION: A DOCUMENTARY HISTORY 318–
19 (John J. Patrick & Gerald P. Long eds., 1999).
55. 310 U.S. 296, 303 (1940).
56. 330 U.S. 1, 15 (1947).
57. For a recent history of Supreme Court case law concerning the religion clauses, see
generally Jesse H. Choper, A Century of Religious Freedom, 88 C
AL. L. REV. 1709 (2000). Choper
contends that the federal Judiciary did not hold a substantial role in interpreting the religion clauses
until the last hundred years. Id.
58. For an excellent overview of the distinct views of the framers regarding the proper
relationship between religion and government, see L
AWRENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW § 14-3, at 1158–60 (2d ed. 1988). There, Tribe summarizes the
“evangelical view,” the “Jeffersonian view,” and the “Madisonian view.” Id.
32 Texas Law Review [Vol. 87:7
of a state religion. Typical establishment clauses provided, “No
subordination nor preference of any one sect or denomination to another shall
ever be established by law.”
59
Some clauses were less explicit, prohibiting
establishment by preventing the government from forcing citizens to finan-
cially support any specific religion.
60
There was thus a broad consensus in 1868 in favor of nonestablish-
ment in state constitutional law, but the consensus fell one state short of the
three-quarters consensus required by Article V of the federal Constitution to
make federal constitutional law. It is striking that so many states in 1868 had
clauses in their state constitutions prohibiting the establishment of religion
and implying that freedom from an establishment was an individual funda-
mental right and not a collective-federalism state right against the national
government. This evidence strongly supports Professor Kurt Lash’s argu-
ment that even if the federal Establishment Clause in 1791 was originally
meant as a federalism device to protect against established state churches, by
1868 the ratifiers of the Fourteenth Amendment would have thought that
freedom from a religious establishment was an individual fundamental right
or privilege or immunity.
61
If so, Justice Clarence Thomas’s argument that
the Establishment Clause ought never to have been incorporated may turn out
to be wrong, because by 1868 most Americans thought of nonestablishment
as a matter of individual rights and not federalism.
62
Most Americans in
1868 would have thought that their privileges or immunities included an in-
dividual right to be free from a religious establishment.
Looking at the right to be free from a religious establishment in terms
of what percentage of the population lived in states that forbade religious
establishments, we found that a staggering 71% of the population lived in
such states—an overwhelming supermajority. This seems like compelling
evidence in support of a Fourteenth Amendment rule of state nonestablish-
ment as a matter of individual right.
59. E.g., ME. CONST. of 1819, art. I, § 3.
60. E.g., M
ICH. CONST. of 1850, art. IV, § 39 (“The legislature shall pass no law to . . . compel
any person to attend, erect, or support any place of religious worship, or to pay tithes, taxes, or other
rates for the support of any minister of the gospel or teacher of religion.”).
61. See Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the
Nonestablishment Principle, 27 A
RIZ. ST. L.J. 1085, 1099–1100 (1995) (asserting that if, by 1868,
“the words of the Establishment Clause had been reinterpreted to express the principle that no
person should be subject to state-imposed religious establishments,” then “it would not have been
illogical for the framers of the Fourteenth Amendment to expect its incorporation”).
62. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring). Justice
Thomas wrote that the provision does not on its face limit states with regard to religion. Id. Rather,
he argued, “The Establishment Clause originally protected States, and by extension their citizens,
from the imposition of an established religion by the Federal Government. Whether and how this
Clause should constrain state action under the Fourteenth Amendment is a more difficult question.”
Id. (citation omitted); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004)
(Thomas, J., concurring) (“I would acknowledge that the Establishment Clause is a federalism
provision, which, for this reason, resists incorporation.”).
2008] Individual Rights Under State Constitutions in 1868 33
There was substantial regional variation in the prevalence of
establishment clauses. Establishment of religion was prohibited in 83% of
Midwestern–Western state constitutions, in 70% of Northeastern state con-
stitutions, and in 67% of Southern state constitutions. Finally, establishment
clauses were found in 78% of the pre-1855 constitutions and 68% of the
post-1855 constitutions. This is surprising in light of other evidence that
Americans after the Civil War were more religious than they had been in the
early years of our constitutional republic.
63
Interestingly, two states in 1868,
Massachusetts and New Hampshire, not only permitted the establishment of
a religion but explicitly established Christianity
64
and Protestantism,
65
respectively. Connecticut did a little bit of both, in one clause prohibiting
establishment by banning compelled support or association with any
church,
66
and in another establishing, or at least providing special recognition
of, Christianity.
67
Ten states in 1868 thus either did not have establishment
clauses or, in two cases, still explicitly established a state religion.
2. Free Exercise.—The Free Exercise Clause was first applied to the
states through Fourteenth Amendment substantive due process in Cantwell v.
Connecticut in 1940.
68
However, all thirty-seven state constitutions in 1868
already guaranteed the right to the free exercise of one’s religion, albeit in
words that were arguably somewhat more watered-down than the words of
the federal Free Exercise Clause. A typical state constitutional free exercise
clause read, “That no person shall be deprived of the right to worship God
according to the dictates of his own conscience.”
69
These thirty-seven free-exercise-clause analogs contained
extremely interesting variations in their wording that are worth further
categorization and analysis. Our federal Constitution guarantees the free
“exercise” of religion,
70
but the vast majority of state constitutions in 1868
63. See, e.g., ROGER FINKE & RODNEY STARK, THE CHURCHING OF AMERICA, 1776–1990, at
15–16 (1992) (finding the rate of religious adherence in America to be 17% before the American
Revolution and 35% shortly after the Civil War).
64. M
ASS. CONST. of 1780, pt. 1, art. III (authorizing a form of the establishment of religion,
namely the use of government funds to support and maintain public Protestant teachers, but
providing that all denominations of Christianity be equal under the law).
65. N.H.
CONST. of 1784, pt. I, art. VI (authorizing the use of government funds to support and
maintain public Protestant teachers, a form of the establishment of religion).
66. C
ONN. CONST. of 1818, art. VII, § 1 (“[N]o person shall by law be compelled to join or
support, nor be classed with, or associated to, any congregation, church, or religious
association . . . .”).
67. C
ONN. CONST. of 1818, art. I, § 4 (“No preference shall be given by law to any Christian
sect or mode of worship.”).
68. 310 U.S. 296, 303 (1940).
69. E.g., A
LA. CONST. of 1867, art. I, § 4.
70. U.S.
CONST. amend. I.
34 Texas Law Review [Vol. 87:7
guaranteed seemingly narrower rights to freedom of “worship,”
71
“profession,”
72
“opinion,”
73
and “belief.”
74
Freedom of worship might
include the ability of Native Americans to ingest peyote during religious
rituals,
75
but it would not necessarily protect Amish parents from having to
send their children to school
76
or protect a church from a historic preservation
law.
77
Specifically, thirty-five states in 1868—more than a three-quarters,
Article V consensus—had freedom-of-worship clauses, but only three states
had free exercise clauses, with one state, Maryland, having both. The differ-
ences between these various wordings of religious-rights clauses could have
significant ramifications for religious rights. For example, the predominant
freedom-of-worship clauses may not protect religiously motivated actions
taken outside of religious ceremonies of worship. If so, this finding would
suggest that Justice Scalia’s reading of the free exercise right in Employment
71. E.g., S.C. CONST. of 1868, art. I, § 9 (“No person shall be deprived of the right to worship
God according to the dictates of his own conscience . . . .”). Noah Webster’s authoritative 1828
dictionary offers the following definitions that may shed light on the original meaning of the word
worship. Worship is defined as “[t]o perform acts of adoration, [t]o perform religious services.”
The example given is from John 4:20: “Our fathers worshipped in this mountain.” N
OAH
WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). The word worship
derives from the noun wurrshipe, which in 1200 meant “condition of being worthy, distinction,
honor” with “[t]he meaning of respect or honor shown to a person or thing . . . first recorded in Old
English (about 1000) and that of reverence or veneration paid to a being regarded as supernatural or
divine in Cursor Mundi (before 1325).” T
HE BARNHART DICTIONARY OF ETYMOLOGY 1245
(Robert K. Barnhart & Sol Steinmetz eds., 1988).
72. E.g., C
ONN. CONST. of 1818, art. I, § 3 (“The exercise and enjoyment of religious
profession and worship, without discrimination, shall forever be free to all persons in this
State . . . .”).
73. E.g.,
IND. CONST. of 1851, art. I, § 3 (“No law shall, in any case whatever, control the free
exercise and enjoyment of religious opinions, or interfere with the rights of conscience.”).
74. E.g., R.I.
CONST. of 1842, art. I, § 3 (“[W]e therefore declare that no man
shall . . . otherwise suffer on account of his religious belief . . . .”). In Webster’s 1828 dictionary,
profession is defined in the same dictionary as “[o]pen declaration; public avowal or
acknowledgment of one’s sentiments or belief; as in professions of friendship or sincerity; a
profession of faith or religion.” N
OAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828). In turn, Barnhart says that the verb profess originally meant to “declare openly,
avow, acknowledge. Before 1333 professen to take the vows of a religious order . . . .” THE
BARNHART DICTIONARY OF ETYMOLOGY 844 (Robert K. Barnhart & Sol Steinmetz eds., 1988).
The Latin origin of the word is “pro- + fateri,” which means “utter, declare, disclose.” Id.
75. See Employment Div. v. Smith, 494 U.S. 872, 878–89 (1990) (holding that a generally
applicable criminal law prohibiting peyote use did not violate free exercise precepts).
76. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) (holding that the state’s interest in
universal education is subject to a balancing test against parents’ interests, protected by the First
Amendment, to control the religious upbringing of their children).
77. See City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (holding that Section Five of the
Fourteenth Amendment does not give Congress the power to alter the meaning of the Free Exercise
Clause, and therefore upholding a city ordinance limiting a church’s ability to obtain a building
permit).
2008] Individual Rights Under State Constitutions in 1868 35
Division v. Smith
78
may be more on the mark than Judge McConnell’s
reading of that right in McConnell’s scholarship.
79
It is very interesting in light of the Scalia–McConnell debate that five
state constitutions in 1868 also specifically prohibited the diminishing or
enlarging of individual rights based on a person’s religion. These clauses
were generally written as follows: “That the civil rights, privileges, or ca-
pacities of any citizen shall in no wise be diminished or enlarged on account
of his religion.”
80
These clauses could be read to render laws such as the
Religious Freedom Restoration Act
81
(RFRA) unconstitutional because such
laws enlarge rights and privileges on account of religion. Another interesting
finding among the state free exercise clauses is that fifteen states, or 41%,
contained explicit public-peace-and-safety exceptions to free exercise rights.
A typical such exception stated, “[T]he liberty of conscience hereby secured
shall not be so construed as to excuse acts of licentiousness, or justify prac-
tices inconsistent with the peace or safety of this state.”
82
This too lends
support to Justice Scalia’s position in Smith.
Many free exercise clauses contained language that to modern ears seems
incongruous because it emphasizes the importance of religion over nonre-
ligion; the free exercise of atheism was certainly not contemplated by the
majority of these states. Delaware, for instance, protected the free exercise
of religion “[a]lthough it is the duty of all men frequently to assemble to-
gether for the public worship of the Author of the universe, and piety and
morality, on which the prosperity of communities depends, are thereby
promoted.”
83
This decision not to protect agnosticism or atheism as a
permissible “religious” choice is striking given modern debates about the
religion clauses.
84
The point is emphasized by references to God in many of
78. 494 U.S. 872 (1990).
79. Compare id. at 878 (holding that the First Amendment does not justify violation of a
generally applicable law, so long as the prohibition of religious exercise is merely “incidental”
rather than the object of the law), with Michael W. McConnell, The Problem of Singling Out
Religion, 50 D
EPAUL L. REV. 1, 45–47 (2000) (urging an extension of the free exercise doctrine,
analogizing to the First Amendment’s guarantee of freedom of association).
80. E.g., K
Y. CONST. of 1850, art. XIII, § 6.
81. Pub. L. No. 103-141, 107 Stat. 1488, invalidated by City of Boerne v. Flores, 521 U.S. 507
(1997).
82. E.g., N.Y.
CONST. of 1846, art. I, § 3.
83. D
EL. CONST. of 1831, art. I, § 1.
84. To date, the Supreme Court has avoided formulating a definition of “religion” under the
First Amendment. It has, however, been more definitive in cases involving statutory construction.
Specifically, the Court has construed the “religious training and belief” requirement for the draft
exemption under the Universal Military Training and Selective Service Act to include nontheistic
reasons for conscientious objection. See Welsh v. United States, 398 U.S. 333, 342–43 (1970)
(reasoning that the “religious training and belief” draft exemption is not open to those “whose
beliefs are not deeply held” or “whose objection to war does not rest at all upon moral, ethical, or
religious principle but instead rests solely upon considerations of policy, pragmatism, or
expediency”); United States v. Seeger, 380 U.S. 163, 184 (1965) (finding that the appropriate
inquiry for the requirement is “an objective one,” which asks whether “the claimed belief occup[ies]
36 Texas Law Review [Vol. 87:7
the state constitutions as the “author of all good government”
85
or as the
“great Legislator of the universe.”
86
These references conflate the existence
of ordered liberty with a constitutional acknowledgment of the existence of
God, suggesting that the construction of an ordered state requires a constitu-
tional repudiation of atheism. Under such a view, references to “under God”
in the Pledge of Allegiance or to “In God We Trust” on our currency would
be entirely unproblematic.
3. Religious Qualifications for Holding Office.—The original federal
Constitution, even before the adoption of the First Amendment, banned
religious qualifications for holding federal office.
87
It is thus not surprising
that a substantial number of states also banned such qualifications in their
constitutions in 1868. In all, twenty-four states—a majority of the thirty-
seven—prohibited religious tests as qualifications for holding public office.
The clauses in question generally provided, “[N]o religious test shall ever be
required as a qualification to any office of public trust under this State.”
88
It
is perhaps surprising that more states—two-thirds or three-quarters—did not
ban religious qualifications for holding office. Looking at the issue by
population, it turns out that 66% of Americans living in 1868—roughly two-
thirds—lived in jurisdictions where religious qualifications for holding office
were forbidden. This prohibition was found in 75% of Midwestern–Western
states, 67% of Southern states, and 50% of Northeastern states. Seventy-four
percent of the post-1855 constitutions, compared to 56% of the pre-1855
constitutions, prohibited religious qualifications. This suggests a modest
trend toward forbidding religious qualifications for holding office. Interest-
ingly, two states, Pennsylvania and Mississippi, forbade religious
qualifications for holding office but allowed the disqualification from office
of atheists.
89
One state constitution in 1868, that of New Hampshire, explic-
itly created a religious (and property) test for qualification for public office.
90
Furthermore, seven of the original state constitutions called for the disquali-
fication of ministers from legislative office—a practice that was declared
the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly
qualified for exemption”).
85. E.g., G
A. CONST. of 1868, pmbl.
86. E.g., M
ASS. CONST. of 1780, pmbl.
87. See U.S.
CONST. art. VI, cl. 3 (“[N]o religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States.”).
88. E.g., I
LL. CONST. of 1848, art. XIII, § 4.
89. M
ISS. CONST. of 1868, art. XII, § 3 (“No person who denies the existence of a Supreme
Being shall hold any office in this State.”); see P
A. CONST. of 1838, art. IX, § 4 (“That no person
who acknowledges the being of God and a future state of rewards and punishments, shall, on
account of his religious sentiments, be disqualified to hold any office or place of trust or profit
under this commonwealth.”).
90. N.H.
CONST. of 1784, pt. II (“Provided nevertheless, That no person shall be capable of
being elected a Senator, who is not of the Protestant Religion, and seized of a freehold estate in his
own right of the value of two hundred pounds, lying within this State . . . .”)
2008] Individual Rights Under State Constitutions in 1868 37
unconstitutional in McDaniel v. Paty in 1978.
91
The federal prohibition of
religious tests for office was applied to the states in Torcaso v. Watkins in
1961.
92
4. Specific References to God in the Preambles of the 1868 State
Constitutions.—There is one striking respect in which many state
constitutions in 1868 explicitly differed from the federal Constitution and
Bill of Rights on a matter bearing on religion. Fully twenty-seven, or two-
thirds, of the 1868 state constitutions contained an explicit reference to God
in their preambles. A typical such reference stated, “[W]e, the people of the
State of Indiana, grateful to Almighty God for the free exercise of the right to
choose our own form of government, do ordain this constitution.”
93
Some
might argue that these references, like other references to God, seem again to
legitimize the use of phrases such as “under God” in the Pledge of Allegiance
or “In God We Trust” on the currency. They explicitly and textually specify
the existence of God in the constitutional text itself. The counterargument
might be that we have many more polytheists, atheists, and agnostics today
than were present in 1868. As Justice Brennan observed:
[O]ur religious composition makes us a vastly more diverse people
than were our forefathers. They knew differences chiefly among
Protestant sects. Today the nation is far more heterogeneous
religiously, including as it does substantial minorities not only of
Catholics and Jews but as well of those who worship according to no
version of the Bible and those who worship no God at all.
94
Obviously, the federal Constitution and Bill of Rights make no reference to
God in the text whatsoever.
Looking at this matter by population, it turns out that 73% of the
American people in 1868 lived in states that had constitutions that explicitly
mentioned God. Sorting these clauses by region, we find that 83% of
Midwestern–Western constitutions referred to God, as did 70% of
Northeastern state constitutions and 67% of Southern state constitutions.
These explicit textual references to God appeared in 67% of the pre-1855 and
in 79% of the post-1855 constitutions. This increasing prevalence is sur-
prising given the absolute absence of references to God in our federal
Constitution today, but it is consistent with the idea that Americans were ac-
tually more religious at the time of the Civil War and the ratification of the
91. 435 U.S. 618, 629 (1978).
92. 367 U.S. 488, 495 (1961).
93. E.g., I
ND. CONST. of 1851, pmbl.
94. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 240 (1963) (Brennan, J., concurring); see
also McCreary v. ACLU, 545 U.S. 844, 884 (2005) (O’Connor, J., concurring) (“[T]he Framers
lived at a time when our national religious diversity was neither as robust nor as well recognized as
it is now. They may not have foreseen the variety of religions for which this Nation would
eventually provide a home.”).
38 Texas Law Review [Vol. 87:7
Fourteenth Amendment than they had been during the more deistic period of
the founding.
95
This fact is ironic considering the use the Supreme Court has
made of the Fourteenth Amendment to stamp out public references to God or
religion.
5. Ceremonial Deism.—In addition to these references to God in the
preambles of state constitutions, thirty state constitutions in 1868, or more
than three-fourths of the total, contained references to God that can only be
described as a state constitutional “endorsement” of what the U.S. Supreme
Court in recent years has sometimes called “ceremonial deism.”
96
Examples
of ceremonial deism include the use in constitutional texts of such phrases as
“Almighty God,”
97
“Supreme Being, the Great Creator and Preserver of the
Universe,”
98
“Author of the universe,”
99
“[A]uthor of all good
government,”
100
“Sovereign Ruler of the Universe,”
101
“Divine Being,”
102
“Great Legislator of the Universe,”
103
and “[O]ur Creator.”
104
95. See supra note 63.
96. See Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J., dissenting). As Justice
Brennan explained:
While I remain uncertain about these questions, I would suggest that such practices as
the designation of “In God We Trust” as our national motto, or the references to God
contained in the Pledge of Allegiance to the flag can best be understood, in Dean
Rostow’s apt phrase, as a form [of] “ceremonial deism,” protected from Establishment
Clause scrutiny chiefly because they have lost through rote repetition any significant
religious content.
Id. (footnote omitted); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37 (2004)
(O’Connor, J., concurring). In this case, Justice O’Connor explained how ceremony can strip
references to God of their religious significance:
This category of “ceremonial deism” most clearly encompasses such things as the
national motto (“In God We Trust”), religious references in traditional patriotic songs
such as The Star-Spangled Banner, and the words with which the Marshal of this Court
opens each of its sessions (“God save the United States and this honorable Court”).
These references are not minor trespasses upon the Establishment Clause to which I
turn a blind eye. Instead, their history, character, and context prevent them from being
constitutional violations at all.
Id.
97. E.g., S.C.
CONST. of 1868, pmbl. (“[W]e, the people of the State of South Carolina, in
convention assembled, grateful to Almighty God for this opportunity . . . .”).
98. E.g., C
ONN. CONST. of 1818, art. VII, § 1 (“It being the duty of all men to worship the
Supreme Being, the great Creator and Preserver of the Universe . . . .”).
99. E.g., D
EL. CONST. of 1831, art. I, § 1 (“Although it is the duty of all men frequently to
assemble together for the public worship of the Author of the universe . . . .”).
100. See, e.g., G
A. CONST. of 1868, pmbl. (“acknowledging and invoking the guidance of
Almighty God, the author of all good government”).
101. See, e.g., M
E. CONST. of 1819, pmbl. (referencing “acknowledging, with grateful hearts,
the goodness of the Sovereign Ruler of the Universe”).
102. E.g., M
D. CONST. of 1867, Declaration of Rights, art. 39 (referencing “the attestation of
the Divine Being”).
103. E.g., M
ASS. CONST. of 1780, pmbl. (referencing “the goodness of the great Legislator of
the universe”).
2008] Individual Rights Under State Constitutions in 1868 39
There was thus an Article V, three-quarters-of-the-states consensus in
1868 that ceremonial deism was perfectly consistent with the nonestablish-
ment and free exercise principles. Looking at the matter by population, we
found that a whopping 88% of the American people in 1868 lived in states
with constitutions that endorsed ceremonial deism. Such references to God
appeared in 90% of Northeastern state constitutions, 83% of Midwestern–
Western state constitutions, and 73% of Southern state constitutions. Ex-
plicit textual references to God were slightly more common in the older
constitutions in 1868. Eighty-nine percent of the pre-1855 constitutions had
such references as compared with 74% of the post-1855 constitutions.
6. Blaine Amendments.—Blaine amendments are provisions that forbid
any kind of government financial aid to educational or other government
institutions that have any religious affiliation.
105
They are named after
former Republican presidential nominee James G. Blaine who originally
proposed such an amendment to the federal Constitution.
106
A typical
Blaine-amendment clause provided, “[N]o religious or other sect or sects
shall ever have any exclusive right to or control of any part of the school
funds of this state.”
107
Such provisions would presumably strictly bar
government financial aid to parochial schools and might be argued to bar
vouchers redeemable at such schools as well. In 1868, when the Fourteenth
Amendment was ratified, only eight state constitutions—a relatively small
minority—contained Blaine-amendment-like provisions. Looking at the
matter by population, we found that only 22% of the American people in
1868 lived in states with this kind of clause in their state constitutions.
Looking at the issue regionally, 58% of Midwestern–Western states, 7% of
Southern states, and 0% of Northeastern states had such clauses. Blaine-
amendment clauses were evenly distributed across older and newer
constitutions. Today, many state constitutions have Blaine amendments or
provisions, but our research reveals they were not a part of the original public
104. E.g., VA. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of 1776,
Declaration of Rights, § 9) (referencing “the duty which we owe to our Creator”).
105. The original Blaine Amendment was proposed in 1875 as an addition to the U.S.
Constitution. Blaine Amendment, H.R.J. Res. 1, 44th Cong. (1875), 4 C
ONG. REC. 205 (introducing
the Blaine Amendment). The text of the Amendment read:
No State shall make any law respecting an establishment of religion or prohibiting the free
exercise thereof; and no money raised by taxation in any State for the support of public
schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall
ever be under the control of any religious sect; nor shall any money so raised or lands so
devoted be divided between religious sects or denominations.
Id.
106. The Amendment passed the House, 4 C
ONG. REC. 5191 (1876) (tallying the House votes),
but failed to garner the necessary two-thirds vote in the Senate, id. at 5595 (tallying the Senate
votes).
107. E.g.,
OHIO CONST. of 1851, art. VI, § 2.
40 Texas Law Review [Vol. 87:7
meaning of the nonestablishment principle in 1868 when the Fourteenth
Amendment was ratified.
7. Clauses Pertaining to Oaths.—Three states—a very small
minority—contained explicit textual clauses mandating that the manner of
administering an oath or affirmation to a person ought to be in accordance
with his own religious persuasion. Typically, such clauses provided, “The
mode of administering an oath or affirmation shall be such as may be most
consistent with, and binding upon, the conscience of the person to whom
such oath or affirmation may be administered.”
108
These clauses were likely
an accommodation for religions—such as the Religious Society of Friends,
or Quakers—that prohibited the swearing of oaths by their members. About
7% of the population in 1868 lived in states with such clauses in their bills of
rights. These clauses were most common in the Midwest–West, where 17%
of the states had them, as compared to 7% in the South and 0% in the
Northeast. Oaths clauses were found in 6% of the pre-1855 and in 11% of
the post-1855 constitutions.
8. Legislative Duty to Protect Religion.—Nebraska, Texas, and Ohio—
a small minority of states—had specific clauses in their state constitutions
that provided, typically, “[I]t shall be the duty of the legislature to pass such
laws as may be necessary to protect every religious denomination in the
peaceable enjoyment of their own mode of public worship.”
109
This protec-
tion was guaranteed in states where 9% of the population lived in 1868. Two
of these states were in the Midwest–West, and one was in the South. Duties
to protect religion were found in 6% of the pre-1855 and 11% of the post-
1855 constitutions. These clauses are noteworthy because they provide for a
positive duty on government to foster religious free exercise, rather than pro-
viding only a negative bar on government interferences with religious free
exercise. These clauses also protect the freedom of worship, which may in-
volve action, and not simply freedom of conscience or belief. The hard
question posed by the Religious Freedom Restoration Act is whether free-
dom of worship goes beyond freedom to hold religious ceremonies to
include, for example, the Amish way of life whereby children are not edu-
cated beyond the “Three Rs” (reading, ’riting, and ’rithmetic).
9. Witness Qualification on the Basis of Religion.—Three states—a
very small minority—had clauses in their state constitutions in 1868 that
provided that no person could be rendered incompetent as a witness as a re-
sult of his religious beliefs. One such clause stated, for example, “No person
shall be rendered incompetent to be a witness on account of his opinions on
108. E.g., OR. CONST. of 1857, art. I, § 7.
109. E.g., T
EX. CONST. of 1868, art. I, § 4.
2008] Individual Rights Under State Constitutions in 1868 41
matters of religious belief.”
110
This protection was guaranteed to 8% of the
population. All three were in the Midwest–West. Eleven percent of the pre-
1855 and 5% of the post-1855 constitutions contained these clauses.
B. Rights of Freedom of the Press, of Speech, of Association, and of
Political Participation
We turn next to the rights of freedom of expression, which appear in
the federal First Amendment and which were important protections at the
federal level against the suppression of speech and of the press. The need for
provisions like these was made evident to Americans by the events that took
place in England during that country’s civil war in the late 1600s.
111
1. Freedom of the Press.—All thirty-seven state constitutions in 1868
had clauses that explicitly protected the freedom of the press, rendering its
incorporation as a matter of substantive due process in 1931
112
largely redun-
dant except insofar as federal courts might construe such language more
liberally than state courts had done. Most of these clauses were worded like
the Free Press Clause in our federal First Amendment, stating, for example,
“No law shall be passed restraining the free expression of opinion, or re-
stricting the right to speak, write, or print freely on any subject
whatever . . . .”
113
Like the First Amendment of the federal Constitution,
these clauses were largely structural in that they limited the government with
regard to its constituents. Some of the clauses, however, sounded more
antimajoritarian than the First Amendment, as they had dropped the
structural language for a more individualistic tone. For example, Missouri’s
constitution provided, “That the free communication of thoughts and opin-
ions is one of the invaluable rights of man, and that every person may freely
speak, write, and print on any subject.”
114
Obviously, since all thirty-seven
states in 1868 had such clauses in their state constitutions, 100% of the
population in all three regions lived in such states. There was also obviously
no difference here between older and more recent state constitutions.
It bears noting that the freedom of the press protected by state
constitutional bills of rights in 1868 probably went beyond merely a
protection against prior restraints. While in 1791, freedom of the press was
arguably nothing more than a protection against prior restraints (as suggested
110. MICH. CONST. of 1850, art. VI, § 34.
111. For an in-depth history of the First Amendment, see generally Z
ECHARIAH CHAFEE, JR.,
FREE SPEECH IN THE UNITED STATES (1941).
112. See Near v. Minnesota, 283 U.S. 701, 707 (1931) (incorporating the First Amendment’s
protection of the press against the states).
113. E.g., O
R. CONST. of 1857, art. I, § 8.
114. M
O. CONST. of 1865, art. I, § 27.
42 Texas Law Review [Vol. 87:7
by the scholarship of Leonard Levy),
115
by 1868 the freedom of the press had
come to be understood to forbid laws like the federal Alien and Sedition Acts
of 1798
116
and to also forbid actions for seditious libel.
117
Exactly how much
broader the original meaning of the fundamental right of freedom of the press
was in 1868 than that original meaning was in 1791 is a fascinating topic that
unfortunately goes beyond the scope of our Article.
118
2. Freedom of Speech.—Beyond freedom of the press, another core
right of expression guaranteed by the federal Constitution’s First Amendment
is freedom of speech. The freedom of speech is considered fundamental be-
cause it furthers self-governance, aids the discovery of truth, promotes
autonomy, and fosters tolerance.
119
It was incorporated against the states as a
matter of substantive due process in Gitlow v. New York in 1925.
120
Thus it comes as no surprise that a full thirty-two out of thirty-seven—
or more than three-quarters—of the states in 1868 explicitly and textually
protected the right to free speech. This is an Article V consensus sufficient
for the establishment of federal constitutional law. A typical state constitu-
tional clause protecting freedom of speech in 1868 provided, “No law shall
ever be passed to curtail or restrain the liberty of speech or of the press.”
121
Just as a supermajority of states recognized the right to freedom of speech, a
huge supermajority of the American people—92% of the population—lived
in states where this right was recognized. Looking at the issue regionally, it
turns out that 100% of Midwestern–Western states had rights to free speech,
whereas only 93% of Southern and 60% of Northeastern states did. Textual
protections of the freedom of speech were found in 78% of the pre-1855 con-
stitutions and 95% of the post-1855 constitutions, so the trend in American
constitutional law at the state level in 1868 was toward more protection for
115. LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN
EARLY AMERICAN HISTORY 247–48 (1960).
116. An Act for the Punishment of Certain Crimes against the United States (Sedition Act), ch.
74, 1 Stat. 596 (1798) (expired 1801); An Act Respecting Alien Enemies (Alien Enemies Act), ch.
66, 1 Stat. 577 (1798) (current version at 50 U.S.C. §§ 21–24 (2000)); An Act Concerning Aliens
(Alien Enemies Act), ch. 58, 1 Stat. 570 (1798) (expired 1800); An Act to Establish an Uniform
Rule of Naturalization (Naturalization Act of 1798), ch. 54, 1 Stat. 566 (1798) (repealed 1802).
117. See L
EONARD W. LEVY, EMERGENCE OF A FREE PRESS 309–49 (1985) (discussing the
emergence of a liberalized view of free press around the turn of the nineteenth century in the context
of the scholarly discourse that ultimately culminated in the overruling of such laws as the Alien and
Sedition Acts of 1798 and the prohibition of actions for seditious libel).
118. For a discussion of the original significance of the Free Press Clause, see generally David
A. Anderson, The Origins of the Press Clause, 30 UCLA
L. REV. 455 (1983). Anderson interprets
the history of the Free Press Clause and reexamines Leonard Levy’s conclusion that, to the framers,
freedom of the press meant only freedom from prior restraint. Id.
119. For an opinion that generally encompasses these rationales, see Whitney v. California, 274
U.S. 357, 375 (1927) (Brandeis, J., concurring). Justice Brandeis describes the framers’ view of the
central importance of freedom of speech in a functioning democracy. Id.
120. 268 U.S. 652, 666 (1925).
121. E.g.,
CONN. CONST. of 1818, art. I, § 6.
2008] Individual Rights Under State Constitutions in 1868 43
freedom of speech. Most free-speech clauses were intertwined with free-
press clauses and had the same characteristics, described above. Unlike their
modern federal counterpart, however, many of the state constitutions speci-
fied that citizens were responsible for the abuse of their right to free
speech.
122
Not all press clauses were tethered to speech clauses. Virginia,
for instance, provided a strong populist protection that stood alone: “That the
freedom of the press is one of the great bulwarks of liberty, and can never be
restrained but by despotic governments.”
123
3. Assembly and Petition.—The third right of political participation
guaranteed by the First Amendment to the federal Constitution is the right to
assemble peaceably and to petition the government for the redress of
grievances.
124
This right also appears to have been a fundamental right under
state constitutional law in 1868. A full thirty-four states, or more than three-
quarters of the total, protected the right of citizens to peaceably assemble for
their common good and to petition the government. Once again, this is an
Article V consensus for creating federal constitutional law. A supermajority
of the American people—94%—lived in states where these rights were pro-
tected in 1868. Protection of these rights was found in 100% of Northeastern
states, 92% of Midwestern–Western states, and 87% of Southern states. All
of the pre-1855 constitutions included assembly-and-petition clauses,
whereas 84% of the post-1855 constitutions had them. The rights to freedom
of assembly and petition thus were seen as being implicit in the concept of
ordered liberty—along with the rights to freedom of the press and of
speech—in 1868.
Typical state constitutional language used to protect these rights read:
“The people shall have the right freely to assemble together, to consult for
the common good, to instruct their representatives, and to petition the legis-
lature for redress of grievances.”
125
One state, Delaware, was considerably
more cautious about its grant of the right of free assembly. Delaware’s con-
stitution thus provided:
Although disobedience to laws by a part of the people, upon
suggestions of impolicy or injustice in them, tends, by immediate
effect and the influence of example, not only to endanger the public
welfare and safety, but also in governments of a republican form con-
travenes the social principles of such governments founded on
common consent for common good, yet the citizens have a right in an
orderly manner to meet together, and to apply to persons intrusted
122. E.g., OHIO CONST. of 1851, art. I, § 11 (“Every citizen may freely speak, write, and
publish his sentiments on all subjects, being responsible for the abuse of the right . . . .”).
123. V
A. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of 1776, Declaration
of Rights, § 12).
124. U.S.
CONST. amend. I.
125. E.g., C
AL. CONST. of 1849, art. I, § 10.
44 Texas Law Review [Vol. 87:7
with the powers of government for redress of grievances or other
proper purposes, by petition, remonstrance, or address.
126
The rights of assembly and petition were incorporated against the states
through the Fourteenth Amendment in 1937 and 1939, respectively.
127
4. Reform Government.—The state bills of rights, strikingly, go well
beyond the First Amendment to the federal Constitution in protecting rights
of political participation. A very large number of states—twenty-six, or two-
thirds but not three-quarters of the thirty-seven states in the Union in 1868—
explicitly gave their citizens the right to alter, reform, or abolish their gov-
ernment as they saw proper. A typical state constitutional clause protecting
such a right in 1868 provided, “All power is inherent in the people; all free
governments are founded in their authority, and instituted for their benefit;
they have, therefore, an unalienable and indefeasible right to institute
government, and to alter, reform, or totally change the same, when their
safety and happiness require it.”
128
An additional four states contained weak
language that may have implied something of the same kind of popular
power.
129
Fourteen years ago, Professor Akhil Amar argued in a law review
article that the Framers understood that constitutional change or amendment
was possible outside the strictures of Article V of the federal Constitution.
130
These clauses arguably suggest that a lot of states, although not an Article V
consensus of the states, recognized a fundamental right of the people to alter
or abolish their forms of government.
Looking at the issue by population instead of by a nose count or tally
of state constitutions, it turns out that strong alter-and-reform-government
clauses were present in state constitutions where 65% of the population lived
in 1868. Looking at this issue regionally, 90% of people living in
Northeastern states had them, 67% of people living in Southern states had
them, but only 58% of people living in Midwestern–Western states were so
empowered. We do not know why there was such a large regional variation.
Clauses recognizing a popular power to alter or abolish forms of government
were slightly more common in older state constitutions. We found them in
78% of the pre-1855 and 63% of the post-1855 constitutions.
126. DEL. CONST. of 1831, art. I, § 16.
127. See De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (incorporating the right of free
assembly); Hague v. CIO, 307 U.S. 496, 513–16 (1939) (incorporating the right to petition the
government).
128. E.g., M
E. CONST. of 1819, art. I, § 2.
129. See, e.g., K
AN. CONST. of 1859, Bill of Rights, § 2 (“All political power is inherent in the
people, and all free governments are founded on their authority, and are instituted for their equal
protection and benefit.”).
130. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside
Article V, 94 C
OLUM. L. REV. 457, 458 (1994).
2008] Individual Rights Under State Constitutions in 1868 45
5. Power over Government Officers.—A very small minority of
states—four states to be precise—recognized that their citizens had a funda-
mental claim of power over their government officers. One such state
constitutional clause stated, for example, “That all power is vested in, and
consequently derived from, the people; that magistrates are their trustees and
servants, and at all times amenable to them.”
131
What this meant concretely
we do not know. Ten percent of the population in 1868 lived in states with
clauses of this type in their state constitutions, and these clauses were found
exclusively in the Northeast, where 20% of the states had them, and in the
South, where 13% of the states had them. They were equally common in
recent and older constitutions. Virginia and Massachusetts each had two
clauses allocating such power to citizens.
132
Generally, they permitted the
people to regulate government officers and hold the officers accountable to
them.
133
Massachusetts stated that these powers are necessary to prevent
those vested with authority from becoming oppressors.
134
6. Libel.—Strikingly, notwithstanding the Article V consensus in 1868
supporting a fundamental right to freedom of the press and of speech, a huge
number of state constitutions at that time explicitly contemplated libel suits,
apparently not thinking that such suits posed any conflict with the funda-
mental rights protected. This is arguably surprising given the fact that the
First Amendment was so popular precisely because it was thought to wipe
out some of the English common law bans on libel.
135
Such evidence from
state constitutions could call into question the use of the federal First
Amendment to limit libel suits at least by states, which are constrained only
by the Fourteenth Amendment and not directly by the First. However, most
state constitutional clauses did allow for acquittal if the matter charged as
libelous was found to be true—a protection that was not present in
England.
136
A full twenty-seven states—or two-thirds but not three-quarters of the
total number of states in 1868—had language in their state constitutions that
131. VA. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of 1776, Declaration
of Rights, § 2).
132. M
ASS. CONST. of 1780, pt. 1, arts. V, VIII; VA. CONST. of 1864, Bill of Rights, art. I
(incorporating V
A. CONST. of 1776, Declaration of Rights, §§ 2, 5).
133. M
ASS. CONST. of 1780, pt. 1, art. V; VA. CONST. of 1864, Bill of Rights, art. I
(incorporating V
A. CONST. of 1776, Declaration of Rights, § 2).
134. See M
ASS. CONST. of 1780, pt. 1, art. VIII (“In order to prevent those who are vested with
authority from becoming oppressors, the people have a right . . . to cause their public officers to
return to private life . . . .”).
135. See C
HAFEE, supra note 111, at 21 (arguing that “the First Amendment was . . . intended
to wipe out the common law of sedition”).
136. See 14 T
HOMAS B. HOWELL, The Trial of John Tutchin, at the Guildhall of London, for a
Libel, entitled, ‘The Observator:’ 3 Anne, A.D. 1704, in A
COMPLETE COLLECTION OF STATE
TRIALS 1095, 1128 (1816) (defining any publication that reflects poorly on the government as
libel).
46 Texas Law Review [Vol. 87:7
explicitly contemplated the bringing of at least some libel suits. A typical
state constitutional clause in this category read: “In all criminal
prosecutions . . . for libel the truth may be given in evidence to the jury, and
if it shall appear that the matter charged as libellous is true, but was pub-
lished from good motives, the party shall be acquitted or exonerated.”
137
Looking at the matter by population, fully 72% of the population in 1868
lived in states that had constitutions that specifically contemplated the
bringing of libel suits. Such language was found in 83% of Midwestern–
Western state constitutions in 1868, in 73% of Southern state constitutions at
that time, and in 60% of Northeastern state constitutions. We do not know
what explains these regional variations. Clauses contemplating the avail-
ability of libel suits were present in 78% of the pre-1855 and 63% of the
post-1855 constitutions. Some states provided that, in all libel suits, the jury
was to determine both the law and the facts.
138
Others provided for acquittal
should the jury find that the matter charged as libelous was “true, and was
published with good motives and for justifiable ends.”
139
7. Suffrage.—The Supreme Court has called the right to vote a
“fundamental political right” that is the “preservative of all rights.”
140
It has
stated, “The right to vote freely for the candidate of one’s choice is of the
essence of a democratic society, and any restrictions on that right strike at the
heart of representative government.”
141
It is therefore perhaps surprising that
only seven states in 1868—a small minority—protected the right of suffrage
in their state constitutions, although arguably the centrality of the right might
have caused some constitution makers not to think of mentioning it. A typi-
cal state constitutional clause protecting the right to suffrage read: “The
privilege of free suffrage shall be supported by laws regulating elections and
prohibiting under adequate penalties all undue influence thereon from power,
bribery, tumult, or other improper practice.”
142
Twenty-five percent of the
population in 1868 lived in states with rights of this kind. Such rights were
found in 40% of Southern states and in 10% of Northeastern states but not in
any Midwestern–Western state constitutions. Eleven percent of the pre-1855
and 26% of the post-1855 states had suffrage rights of this kind.
8. Free Elections.—Sixteen states—a minority that was more than one-
quarter but less than one-half of the thirty-seven states in 1868—had clauses
137. FLA. CONST. of 1868, art. I, § 10.
138. See, e.g., N
EB. CONST. of 1866, art. I, § 3 (“In all criminal prosecutions or indictments for
libel the truth may be given in evidence . . . and the jury shall have the right to determine the law
and the fact.”).
139. E.g., W.
VA. CONST. of 1861, art. II, § 5.
140. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
141. Reynolds v. Sims, 377 U.S. 533, 555 (1964). The Court held that the right to vote is
fundamental under the Equal Protection Clause. Id. at 556.
142. E.g., L
A. CONST. of 1868, tit. VI, art. 103.
2008] Individual Rights Under State Constitutions in 1868 47
in their state constitutions that explicitly provided for the holding of free
elections. Ten of the sixteen states provided that the elections be free and
equal.
143
Missouri provided that they be free and open,
144
Maryland provided
that they be free and frequent,
145
and South Carolina provided that they be
free, open, and equal.
146
Forty-eight percent of the American people in
1868—nearly a majority of the population—lived in states with constitutions
that protected this right. Free-election guarantees were most common in the
Northeast, at 50% of states, followed by 47% in the South, and 25% in the
Midwest–West. Fifty percent of the pre-1855 constitutions and 32% of the
post-1855 constitutions had free-election clauses.
9. One Person, One Vote.—One interesting question of political
participation is whether there is a fundamental right to reapportionment of
the legislature—a right the Warren Court found in the federal Constitution as
the right of “one person, one vote.”
147
Only four state constitutions in
1868—a very small minority—provided explicitly that “[r]epresentation shall
be apportioned according to population.”
148
Four percent of the population
lived in states where this right was guaranteed. The right was found in 17%
of the three Midwestern–Western state constitutions, in 13% of Southern
state constitutions, and in none of the Northeastern state constitutions. A
right to reapportionment was more common in newer constitutions, as it was
included in 6% of the pre-1855 state constitutions and 16% of the post-1855
constitutions. It may be that newer and Midwestern–Western states in the
1860s were coming to realize that the failure to mandate reapportionment
was a flaw in the older Northeastern state constitutions.
10. No Right to Secession from the Union.—If the people of a state have
a fundamental right to alter and abolish their forms of government when they
find them to be oppressive, the question will naturally arise whether they also
have a fundamental right to secede from the union of the states. This was a
143. E.g., DEL. CONST. of 1831, art. I, § 3 (“All elections shall be free and equal.”).
144. M
O. CONST. of 1865, art. I, § 14 (stating that “all elections ought to be free and open.”).
145. M
D. CONST. of 1867, Declaration of Rights, art. 7 (“That the right of the people to
participate in the legislature is the best security of liberty and the foundation of all free government;
for this purpose elections ought to be free and frequent . . . .”).
146. S.C.
CONST. of 1868, art. I, § 31 (“All elections shall be free and open, and every
inhabitant of this commonwealth possessing the qualifications provided for in this constitution shall
have an equal right to elect officers and be elected to fill public office.”).
147. See Reynolds v. Sims, 377 U.S. 533, 560 (1964) (“[O]ne person’s vote must be counted
equally with those of all other voters in a State.”); Wesberry v. Sanders, 376 U.S. 1, 18 (1964)
(explaining that “[while] it may not be possible to draw congressional districts with mathematical
precision, that is no excuse for ignoring our Constitution’s plain objective of making equal
representation for equal numbers of people the fundamental goal for the House of
Representatives”); Baker v. Carr, 369 U.S. 186, 208 (1962) (acknowledging “[a] citizen’s right to a
vote free of arbitrary impairment by state action”).
148. E.g., N
EV. CONST. of 1864, art. I, § 13.
48 Texas Law Review [Vol. 87:7
question of great interest in 1868 in the wake of the Civil War. It is thus
perhaps not surprising that eleven state constitutions in 1868 make it
explicitly clear that whatever fundamental right the people have to alter or
abolish their forms of government, that right does not include a right to
secede. A typical clause of this kind read, “This State shall ever remain a
member of the American Union, the people thereof a part of the American
nation, and any attempt, from whatever source, or upon whatever pretense, to
dissolve said Union, or to sever said nation, shall be resisted with the whole
power of the State.”
149
A twelfth state’s constitution, Louisiana’s, contained
a weaker declaration of allegiance to the Union.
150
Looking at this question
by population, it turns out that 23% of the American people in 1868 lived in
states with strong secession prohibitions in their state constitutions. Fully
67%, or two-thirds, of Southern state constitutions contained no-secession
clauses, compared with 8% of the constitutions of Midwestern–Western
states and none of constitutions of the Northeastern states. Secession was
prohibited in only 6% of the pre-1855 constitutions but it was prohibited in
53%—a majority—of the post-1855 constitutions. Obviously, Congress in
the 1860s was insisting on antisecession clauses in state constitutions both
when admitting new Midwestern–Western states to the Union and when al-
lowing the eleven Confederate states to re-enter the Union in reconstructed
form. The antisecession principle thus is an important qualification of the
fundamental right of the people to alter or abolish their forms of government,
at least as it had come to be understood by 1868.
11. Arbitrary Power.—Two states had explicit clauses in their state
constitutions in 1868 that protected against exercises of arbitrary government
power. Kentucky’s constitution stated, “That absolute, arbitrary power over
the lives, liberty, and property of freemen exists nowhere in a republic, not
even in the largest majority.”
151
Tennessee’s constitution provided,
“[G]overnment being instituted for the common benefit, the doctrine of non-
resistance against arbitrary power and oppression is absurd, slavish, and de-
structive to the good and happiness of mankind.”
152
The number of people
living in these two states constituted 7% of the total U.S. population in 1868.
This protection appears only in these two Southern state constitutions, which
comprised 13% of all Southern constitutions. Rights of this kind were not
present in any post-1855 constitution.
149. E.g., FLA. CONST. of 1868, art. I, § 3.
150. See L
A. CONST. of 1868, tit. 1, art. 2 (“The citizens of this State owe allegiance to the
United States; and this allegiance is paramount to that which they owe to the State.”).
151. K
Y. CONST. of 1850, art. XIII, § 2.
152. T
ENN. CONST. of 1834, art. I, § 2.
2008] Individual Rights Under State Constitutions in 1868 49
12. Federal Allegiance.—Three states—North Carolina, South Carolina,
and Missouri—had specific clauses in their state constitutions that declared
that every citizen of the state owed paramount allegiance to the United States
and to the U.S. Constitution. The three clauses were virtually identical,
stating, “Every citizen of this State owes paramount allegiance to the
Constitution and Government of the United States, and no law or ordinance
of this State in contravention or subversion thereof can have any binding
force.”
153
The percentage of the American people living in states with such
clauses in their constitutions in 1868 was 9% of the total population. Federal
allegiance was only demanded of Southerners, and the clause was found in
20% of Southern state constitutions. It was found exclusively in post-1855
constitutions. Again, these clauses, like the antisecession clauses, were ob-
viously part of the price the Reconstruction Congress extracted from the
seceded Southern states for letting them back into the Union. North Carolina
and South Carolina were part of the Confederacy, and the Missouri legisla-
ture passed a secession bill but was kept outside the Confederacy by its pro-
Union state government.
154
C. Protection of Gun Rights and Clauses Bearing on the Military
The Bill of Rights of the federal Constitution protects religious
freedom first, freedom of expression second, and gun rights third. This could
be argued to reflect the priority the ratifiers and framers attached to each of
these sets of rights, although there were two amendments proposed in 1791
ahead of the First that were not ratified at that time.
155
Gun rights are pro-
tected by the federal Constitution in the Second Amendment, which was
interpreted this year in the Supreme Court’s opinion in District of Columbia
v. Heller.
156
As the majority and dissenting opinions in Heller indicate, there
is a famous and longstanding debate over whether the Second Amendment
protects an individual’s right to own a gun for his self-defense or whether it
153. E.g., S.C. CONST. of 1868, art. I, § 4.
154. See C
HRISTOPHER PHILLIPS, MISSOURI’S CONFEDERATE: CLAIBORNE FOX JACKSON AND
THE
CREATION OF SOUTHERN IDENTITY IN THE BORDER WEST 267–69 (2000) (recounting the
competing claims for legitimacy between Missouri’s pro-Union government, which occupied the
state capitol, and its pro-Confederacy government, which fled the capitol, voted for secession, and
was granted admission to the Confederacy).
155. The first of these unratified structural amendments dealt with representation in the House
of Representatives, and it was never ratified. A
MAR, supra note 44, at 14–15. The second provided
that congressional pay increases would not take effect until there had been an intervening
congressional election. Id. at 18. This amendment was eventually ratified in 1992 as the Twenty-
Seventh Amendment. Id. at 17. While it is true that the Amendments in the Bill of Rights were
listed in an order that would allow them to be interlineated in the original Constitution, it is also true
that the first ten Amendments as actually ratified were qualifications of congressional powers under
Article I, Section Eight. See id. at 36–37 (explaining that the Bill of Rights limited the powers
originally conferred to Congress under Article I, Section Eight of the U.S. Constitution). The
ordering of these qualifications could therefore be said to be significant.
156. 128 S. Ct. 2783 (2008).
50 Texas Law Review [Vol. 87:7
protects a collective right of the people of a state to own rifles so they can
serve as members of a well-regulated state militia.
157
The framers of the fed-
eral Constitution did arguably favor state militias of armed citizens over
standing armies of mercenaries, which might abuse liberty and threaten dem-
ocratic government.
158
Such mercenaries had historically been quartered in
private citizens’ homes, which was an abuse of liberty.
159
The Third
Amendment to the federal Bill of Rights limits the federal government’s
power to quarter troops in people’s homes.
160
What, then, did state constitu-
tions say in 1868 about whether there was a fundamental right to own guns?
Was such a right an individual right in 1868 or was it merely a collective
right enjoyed by the state militias? What about standing armies or quartering
soldiers in homes? It turns out that all of these topics were addressed by state
constitutions in 1868.
1. State Constitutional Rights to Keep and Bear Arms.—Twenty-two
state constitutions in 1868—a majority but not an Article V, federal-
constitutional-law-making consensus—had language that explicitly
guaranteed the right of the people to keep and bear arms. As we will explain,
there was a lot of variation in the way these clauses were worded, but twelve
states—a majority of the state clauses in question—explicitly provided,
“[T]he people have a right to bear arms for the defence of themselves and the
State.”
161
Thus a majority of the state constitutional clauses protecting gun
rights did textually describe the rights in question as being individual rather
than merely collective rights. In other states, courts may well have construed
Second Amendment analogs as protecting individual rights. But it is quite
clear that only twenty-two out of thirty-seven states in 1868 had explicit
Second Amendment analogs in their state constitutions. There was thus not
an Article V consensus of the states that Second Amendment analogs were
per se explicitly fundamental federal constitutional rights, and so there cer-
tainly was no such consensus as to an individual’s right to own guns for his
157. Compare id. at 2805–07 (discussing scholarly interpretation of the Second Amendment as
protecting an individual’s right to bear arms, unconnected with military service), with id. at 2839,
2839–41 (Stevens, J., dissenting) (arguing that the scholars the majority cited are mostly “of limited
relevance in construing the guarantee of the Second Amendment: Their views are not altogether
clear, they tended to collapse the Second Amendment with Article VII of the English Bill of Rights,
and they appear to have been unfamiliar with the drafting history of the Second Amendment”).
158. See id. at 2846 (Stevens, J., dissenting) (“‘The sentiment of the time strongly disfavored
standing armies; the common view was that adequate defense of country and laws could be secured
through the Militia—civilians primarily, soldiers on occasion.’” (quoting United States v. Miller,
307 U.S. 174, 178–79 (1939))).
159. See generally Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 W
M. &
MARY BILL RTS. J. 117, 125 (1993) (reflecting on the undesirable historical practice in the
American colonies of quartering British soldiers in private homes from the late seventeenth century
until the Revolutionary War).
160. U.S.
CONST. amend. III.
161. E.g., V
T. CONST. of 1793, ch. I, art. XVI.
2008] Individual Rights Under State Constitutions in 1868 51
own self-defense. As we shall see below, however, the question is
complicated significantly by other clauses in state constitutions that were not
Second Amendment analogs but that may well have protected gun rights.
Looking at this question by population, however, yields a result more
favorable to the claim that there is a fundamental right to own guns. Fully
61% of the population in 1868—a slight supermajority—lived in states with
explicit analogs to the Second Amendment in their state constitutions. The
explicit right to keep and bear arms was most widely recognized in state con-
stitutions in the South in 1868, where 73% of the states recognized such
rights. Protection of gun rights was found in only 60% of Northeastern
states, and in only 42% of Midwestern–Western states, even though the
threat of Indian raids might have been expected to make protection of gun
rights more common in the West. Note that state constitutional protection for
gun rights is below 50% of the total population in Midwestern–Western state
constitutions. We find this regional data to be intriguing because it suggests
that the protection of gun rights was particularly Southern as long ago as
1868. This could arguably be explained by Southern fears of slave revolts
and, later on, of freed African-Americans. Alternatively, it could be the result
of the Reconstruction Congress insisting on gun rights in Southern state con-
stitutions in order to protect African-Americans. The historical data are
fascinating because strong support for gun rights continues to be an impor-
tant part of Southern culture today even though such support has faded in the
Northeast.
162
Protection in state constitutions for gun rights was equally common in
older and newer constitutions. Twelve of the state constitutions in question
explicitly stated that gun rights were being protected for the defense of indi-
vidual citizens themselves in addition to being protected for the defense of
the state through membership in the militia.
163
Other constitutions that were
less textually explicit may well have been construed to protect individual gun
rights. Tennessee’s state constitution tellingly only guaranteed the right to
own guns for free white men.
164
Three state constitutions provided for
government regulation, and limitation, of the right to bear arms.
165
162. See Andrew J. McClurg, Child Access Prevention Laws: A Common Sense Approach to
Gun Control, 18 S
T. LOUIS U. PUB. L. REV. 47, 76 (1999) (noting the “deep emotions the issue of
gun control touches in people, particularly in regions like the South and West, where guns are
culturally entrenched”).
163. See, e.g., V
T. CONST. of 1793, ch. I, art. XVI (“That the people have a right to bear arms
for the defence of themselves and the State . . . .”).
164. See T
ENN. CONST. of 1834, art. I, § 26 (“That the free white men of this State have a right
to keep and to bear arms for their common defence.”).
165. See G
A. CONST. of 1868, art. I, § 14 (“[T]he general assembly shall have power to
prescribe by law the manner in which arms may be borne.”); K
Y. CONST. of 1850, art. XIII, § 25
(“[T]he general assembly may pass laws to prevent persons from carrying concealed arms.”);
OHIO
CONST. of 1851, art. IX, § 5 (“The General Assembly shall provide, by law, for the protection and
safe-keeping of the public arms.”).
52 Texas Law Review [Vol. 87:7
The number of states guaranteeing the right to bear arms may seem
surprisingly low given both the prevalence of guns in 1868 and the continued
salience of gun-rights debates today. As we just noted above, it is quite pos-
sible that the right to bear arms was implicitly embedded in other state
constitutional rights in 1868. As we shall see, many state constitutions spe-
cifically protected as a matter of state positive law the “natural and
inalienable rights” of the people, among which was often the right “to
defend” life and liberty and “to protect” property.
166
These rights may very
well have encompassed a right to bear arms, although proving that would
require further research.
167
In 1868, fourteen states had individual rights to
defend life and property, including seven states that did not also have explicit
right-to-bear-arms clauses. Thus, counting the right to defend life, liberty,
and property increases the number of states (implicitly or explicitly) protect-
ing the right to bear arms from twenty-two to twenty-nine. Under this
expanded view, a full 78% of states—a supermajority—guaranteed a right to
bear arms. This would be an Article V, three-quarters consensus for some
right to defend life, liberty, and property by force of arms.
Today, the question of whether we have a fundamental individual right
to keep and bear arms for our own defense and not as part of a state militia is
particularly important because the Second Amendment is one of the few
parts of the Federal Bill of Rights that has not yet been incorporated to apply
against the states by virtue of the Fourteenth Amendment.
168
Now that the
Supreme Court has construed the Second Amendment in Heller as protecting
an individual’s right to keep and bear arms,
169
the question of whether that
right ought to be incorporated will become much more important. Our data
suggest that explicit Second Amendment analogs were less common in state
constitutions in 1868 than were rights to freedom of religion or of expression,
but they were recognized by a majority of the thirty-seven states in 1868, and
a number of other states may have protected such rights implicitly.
170
What
one should do with this information, if anything, is debatable. Furthermore,
the Supreme Court has only recently—on a five-to-four vote—settled the
debate as to whether the Second Amendment guarantees a collective right to
166. E.g., N.J. CONST. of 1844, art. I, § 1 (“All men are by nature free and independent, and
have certain natural and unalienable rights, among which are those of enjoying and defending life
and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and
happiness.”).
167. For a description of these rights in modern state constitutions, see Eugene Volokh, State
Constitutional Rights of Self-Defense and Defense of Property, 11 T
EX. REV. L. & POL. 400, 401–
07 (2007). Here, Volokh lists the “right to defend life” provisions of twenty-one states. Id.
168. Presser v. Illinois, 116 U.S. 252, 265 (1886) (“[The second] amendment is a limitation
only upon the power of Congress and the National government, and not upon that of the States.”);
E
RWIN CHEMERINSKY, CONSTITUTIONAL LAW 466 (2d ed. 2005) (“[T]he Supreme Court has ruled
that the Second Amendment ‘right to bear arms’ is not incorporated.”).
169. District of Columbia v. Heller, 128 S. Ct. 2783, 2793 (2007).
170. Under the expanded view of gun rights described above, the right to bear arms was
recognized by a supermajority of states.
2008] Individual Rights Under State Constitutions in 1868 53
a state militia
171
or an individual right to keep and bear arms to protect and
provide for oneself and one’s own family.
172
It remains to be seen whether
this majority will endure.
173
An amicus brief submitted to the Supreme Court in the Heller case by
the City of Chicago argued that an individual right to gun ownership was not
fundamental and, therefore, that the Second Amendment should not be in-
corporated against the states through the Fourteenth Amendment.
174
The
brief referred to the Court’s four-factor incorporation test outlined in Duncan
v. Louisiana,
175
which held that a right was more likely to be fundamental if
it was protected by the thirteen original state constitutions, in the constitu-
tions of every state entering the Union thereafter, and in modern state
constitutions.
176
The City of Chicago’s Heller brief then proceeded to count
the original state constitutions that either explicitly or implicitly declined to
provide an individual right to bear arms.
177
The fact that a nontrivial minority—twelve states—explicitly protected
both a collective and an individual right to keep and bear arms in 1868 pro-
vides an interesting twist with respect to this issue.
178
The fact that the right
was such a distinctively Southern one in 1868 may also bear on whether most
171. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1495–1500
(1987) (examining the Constitution’s expansion of the federal government’s military powers and the
framers’ view of state militias as a “vital” check on those powers).
172. The first federal circuit court decision to interpret the Second Amendment as containing an
individual right to bear arms was United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
173. For an originalist criticism of the Heller decision, see Richard A. Posner, In Defense of
Looseness, N
EW REPUBLIC, Aug. 27, 2008, at 32; see also J. Harvie Wilkinson III, Of Guns,
Abortions, and the Unraveling Rule of Law, 95 V
A. L. REV. (forthcoming 2009).
174. Brief of the City of Chicago and the Board of Education of Chicago as Amici Curiae in
Support of Petitioners at 16–17, Heller, 128 S. Ct. 2783 (No. 07-290).
175. 391 U.S. 145 (1968). The amicus brief described the test as follows: “The Court applies a
four-factor framework to implement its selective-incorporation doctrine, examining (1) the Anglo-
American history of the putative right; (2) its recognition in the constitutions of the original States;
(3) subsequent popular regard for the right; and (4) the purpose it serves.” Brief of the City of
Chicago, supra note 174, at 16 (citing Duncan, 391 U.S. at 151–58).
176. Duncan, 391 U.S. at 153–54. The Supreme Court explained:
The constitutions adopted by the original States guaranteed jury trial. Also, the
constitution of every State entering the Union thereafter in one form or another
protected the right to jury trial in criminal cases. Even such skeletal history is
impressive support for considering the right to jury trial in criminal cases to be
fundamental to our system of justice, an importance frequently recognized in the
opinions of this Court.
Id.
177. Brief of the City of Chicago, supra note 174, at 23–27.
178. For additional historical analyses of the meaning of the Second Amendment, see David
Yassky, The Second Amendment: Structure, History and Constitutional Change, 99 M
ICH. L. REV.
588, 599–610 (2000) (outlining the debate between the Federalists and Antifederalists over how to
allocate the power between a national army and state militias); see also Saul Cornell, The Early
American Origins of the Modern Gun Control Debate: The Right to Bear Arms, Firearms
Regulation, and the Lessons of History, 17 S
TAN. L. & POL’Y REV. 571, 571–75 (2006) (arguing
that much of the gun-rights backlash to gun-control laws dates back to debates that occurred in the
Jacksonian era).
54 Texas Law Review [Vol. 87:7
Americans recognized it as a fundamental right at that time. The following
graph shows regional trends in the right to bear arms.
Figure 9: The Right to Bear Arms by Region
0
10
20
30
40
50
60
70
80
90
100
Midwest–West Northeast South
Region
Percent of Population with Right
2. The Right Not to Bear Arms.—Seventeen states—a minority,
although a fairly substantial one—had clauses that expressly prohibited
compelling people who are conscientiously (or otherwise) opposed to bearing
arms from being compelled to do so or from being drafted into militia duty.
Typically, such clauses provided, “[N]o person who conscientiously scruples
to bear arms shall be compelled to do so, but may pay an equivalent for per-
sonal service.”
179
It is worth noting that we are talking here only about those
state constitutions that explicitly recognize conscientious-objector status;
other states in 1868 probably understood their freedom-of-worship and
freedom-of-conscience clauses to make such an explicit recognition of
conscientious-objector status unnecessary. Alternatively, it could be argued
that the very fact that seventeen states thought specific language was neces-
sary means that conscientious-objector status was not seen as being
encompassed by freedom of conscience, profession, or belief. The federal
Constitution makes no direct reference to conscientious objection and,
interestingly, the only attempt by the Supreme Court to define the scope of
179. E.g., ALA. CONST. of 1867, art. I, § 29.
2008] Individual Rights Under State Constitutions in 1868 55
“religion” involved statutory construction of the Selective Service Act,
180
which established a religious exemption to the military draft.
181
An explicit textual right not to bear arms in the military was enjoyed by
59%—a majority—of the population in 1868. Such a right was found in
50% of Midwestern–Western state constitutions, 47% of Southern state
constitutions, and 40% of Northeastern state constitutions. Most of the state
constitutions in question provided that such exemption from military service
required that the person exempted provide financial compensation to the
state.
182
A typical clause read: “No person conscientiously opposed to bear-
ing arms shall be compelled to do militia duty; but such person shall pay an
equivalent for exemption, the amount to be prescribed by law.”
183
3. Clauses Subordinating the Military to the Civil Power.—It is argued
that one of the core purposes of the Second Amendment to the federal
Constitution was to protect against a federal standing army, which might
extinguish liberty, by constitutionally protecting state militias in which every
free adult male is a member and has his own gun.
184
This theme of
subordinating the military to the civil power turns out to have been
widespread in 1868 when the Fourteenth Amendment was ratified. Fully
thirty-five out of thirty-seven states—or an Article V, three-quarters
majority—had clauses in their state constitutions mandating that the military
be in strict subordination to the civil power. Generally, these state constitu-
tional provisions provided, “[T]he military shall, in all cases and at all times,
be in strict subordination to the civil power.”
185
There may or may not have
been an explicit Article V, federal-constitutional consensus that individuals
had a right to own guns for their self-defense, but there was clearly such a
consensus declaring it a fundamental right to live in a society without a
standing army and in which the military is subordinate to the civil power.
What, if anything, one could do to assert such a right in the modern world is
debatable, to say the least.
A huge supermajority of Americans in 1868 lived in states with clauses
of this kind in their state constitutions—85% of the population. Such clauses
were found in 100% of the constitutions of Midwestern–Western state
180. Military Selective Service Act, 50 U.S.C. app. § 456(j) (2000).
181. See Welsh v. United States, 398 U.S. 333, 343–44 (1970) (plurality opinion) (concluding
that a military draftee’s moral, ethical, or religious beliefs, held with the strength of traditional
religious convictions, qualified him for conscientious-objector status); United States v. Seeger, 380
U.S. 163, 164–65 (1965) (defining religion broadly to include some nontheistic views).
182. E.g., N.H.
CONST. of 1784, pt. I, art. XIII (“No person who is conscientiously scrupulous
about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an
equivalent.”).
183. E.g., I
ND. CONST. of 1851, art. XII, § 6.
184. E.g., Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 M
ICH. L. REV. 204, 212 (1983).
185. E.g., K
Y. CONST. of 1850, art. XIII, § 26.
56 Texas Law Review [Vol. 87:7
constitutions in 1868, in 93% of Southern state constitutions, and in 90% of
Northeastern state constitutions. Protection of this right was equally com-
mon both in older and newer constitutions.
4. Clauses Forbidding Standing Armies.—A number of state
constitutions in 1868 explicitly forbade the existence of standing armies.
This is striking given that the United States has had a standing army for a
very long time now—and a very large standing army since at least World
War II. Twenty-one states in 1868, or a majority but not a two-thirds super-
majority, prohibited the maintenance of standing armies in times of peace.
Clauses forbidding standing armies were often coupled with clauses subordi-
nating the military to the civil power. Such clauses typically stated, “No
standing army shall be kept up without the consent of the legislature.”
186
A
solid majority of the American people in 1868—56% of the total
population—lived in states that had constitutions that forbade standing
armies. The prohibition on standing armies was found in 60% of both
Northeastern and Southern state constitutions and in 50% of Midwestern–
Western state constitutions. It was equally common in older and newer
constitutions. Three of these states provided somewhat weaker limits,
providing that standing armies “ought to be avoided.”
187
5. Quartering Soldiers.—Federal gun rights in the Second Amendment
are followed by the Third Amendment’s constraints on quartering soldiers in
private homes, which is another way of subordinating the military to the civil
power. Twenty-seven states—or two-thirds but not an Article V consensus
of three-quarters—had provisions in their state constitutions that prohibited
the quartering of soldiers in private homes without the consent of the owner
in times of peace. These clauses usually provided, “No soldier shall, in time
of peace, be quartered in any house without the consent of the owner, nor in
time of war except in the manner to be prescribed by law.”
188
A supermajor-
ity of the population in 1868—72% of the American people, but not an
Article V, three-quarters supermajority—lived in states with constitutions
that prohibited quartering soldiers in private homes. Such prohibitions could
be found in 80% of the Northeastern state constitutions, in 75% of the
Midwestern–Western state constitutions, and in 67% of the Southern state
constitutions in 1868. Clauses forbidding the quartering of soldiers in private
homes were somewhat more common in older state constitutions in 1868
than in newer ones, suggesting that this may have been an evil whose time
186. E.g., DEL. CONST. of 1831, art. I, § 17.
187. E.g., T
ENN. CONST. of 1834, art. I, § 24 (“[A]s standing armies in time of peace are
dangerous to freedom, they ought to be avoided, as far as the circumstances and safety of the
community will admit . . . .”).
188. E.g., N
EV. CONST. of 1864, art. I, § 12.
2008] Individual Rights Under State Constitutions in 1868 57
was past. Quartering clauses were present in 83% of the pre-1855 but in only
63% of the post-1855 constitutions. Although quartering clauses are seem-
ingly obsolete, the Quartering Act of 1774 was one of the “Intolerable Acts”
of the British Parliament
189
and undoubtedly left lingering apprehension of
military oppression in nineteenth-century Americans. The Third
Amendment’s Quartering Clause has not yet been incorporated against the
states through the Fourteenth Amendment.
D. Fourth Amendment Rights Against Unreasonable Searches and Seizures
The fourth subject discussed by the federal Bill of Rights—after
religion, free expression, and guns and the military—is the protection of an
individual from unreasonable searches and seizures. This is a core aspect of
the right to privacy and constitutes a fundamental limit on government
power. Unsurprisingly, this right turns out to have been very widely recog-
nized in 1868 in state constitutional law.
1. Search and Seizure.—Thirty-four states out of thirty-seven in 1868—
or a three-fourths majority—gave people the right to be free from unreason-
able searches and seizures. This is a federal consensus of the kind sufficient
to make federal constitutional law under Article V of the U.S. Constitution.
Clauses protecting such rights typically provided, “The right of the people to
be secure in their persons, houses, papers, and effects against unreasonable
seizures and searches shall not be violated . . . .”
190
This language mimics the
federal Fourth Amendment.
191
Looking at matters by population, it turns out
that 84% of Americans living in 1868 lived in states with these kinds of pro-
tections in their constitutions. Such protections were found in 100% of
Midwestern–Western state constitutions, in 87% of Southern state
constitutions, and in 90% of Northeastern state constitutions. Ninety-four
percent of the pre-1855 and 89% of the post-1855 constitutions prohibited
unreasonable searches and seizures. No state constitution, however, pro-
vided for a mechanism of enforcement of these rights through, for example,
the exclusion of evidence obtained in violation of them. There was thus an
Article V consensus in the states in 1868 that freedom from unreasonable
searches and seizures was a fundamental right that was implicit in the
189. William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History,
136 M
IL. L. REV. 1, 25 (1992) (relating that one of the Intolerable Acts was the Quartering Act of
1774, which authorized the quartering of soldiers in private homes of the colonists). The Intolerable
Acts, also called the Coercive Acts, were five pieces of legislation passed by the British Parliament
in reaction to the Boston Tea Party—the Boston Port Act, the Massachusetts Regulatory Act, the
Impartial Administration of Justice Act, the Quartering Act of 1774, and the Quebec Act. R
OBERT
MIDDLEKAUF, THE GLORIOUS CAUSE: THE AMERICAN REVOLUTION, 1763–1789, at 230–31 (C.
Vann Woodward ed., 1982).
190. E.g., I
OWA CONST. of 1857, art. I, § 8.
191. See U.S.
CONST. amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”).
58 Texas Law Review [Vol. 87:7
concept of ordered liberty, but there was no apparent consensus that evidence
of a crime seized in violation of this right ought to be suppressed in court.
Such suppression of evidence is referred to today as the exclusionary rule
and was adopted by the Court in Weeks v. United States in 1914.
192
The
Supreme Court incorporated the Fourth Amendment, including an
exclusionary rule, against the states in Mapp v. Ohio in 1961.
193
2. Warrants and Probable Cause.—The federal Fourth Amendment
also sets rules for the issuance of warrants, a protection that was designed in
response to the controversial writs of assistance, which were a significant
factor leading up to the American Revolution.
194
Thirty-six states in 1868—
or once again an Article V, three-quarters consensus—had provisions in their
constitutions requiring all warrants to be supported by oath or affirmation, to
describe particularly the person or things to be seized, and to be issued only
with probable cause. These clauses were invariably paired with search-and-
seizure clauses, as they are in the Fourth Amendment, and they typically
stated, “[N]o warrant shall issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched, and the persons
and things to be seized.”
195
Looking at matters by population, a huge super-
majority of the American people in 1868 lived in states that recognized this
right in their state constitutions—fully 89%. Protection of this right could be
found in 100% of the constitutions of Southern and Midwestern–Western
states, and in 90% of the constitutions of Northeastern states. The only state
constitution without this right was ratified before 1855. The right to a
warrant supported by probable cause was slightly weaker in the Vermont
constitution at the time, which emphasized that such warrants ought not be
granted, rather than banning them outright.
196
E. Criminal Procedure
The fifth major topic addressed by the Bill of Rights to the federal
Constitution after religion; freedom of expression; guns and the military; and
protection from searches, seizures, and warrants is constitutional criminal
procedure. These subjects are addressed in the Fifth and Sixth Amendments,
and arguably some related subjects are addressed in Article I, Sections Nine
192. 232 U.S. 383, 398 (1914).
193. 367 U.S. 643, 655–59 (1961).
194. For background on writs of assistance, see generally M.H.
SMITH, THE WRITS OF
ASSISTANCE CASE (1978).
195. E.g., I
OWA CONST. of 1857, art. I, § 8.
196. V
T. CONST. of 1793, ch. I, art. XI (“[W]arrants, without oath or affirmation first made,
affording sufficient foundation for them, and whereby any officer or messenger may be commanded
or required to search suspected places, or to seize any person[’s] property, not particularly
described, are contrary to that right, and ought not to be granted.”).
2008] Individual Rights Under State Constitutions in 1868 59
and Ten of the federal Constitution. We will therefore now look at the
criminal-procedure rights protected by state constitutions in 1868.
1. Double Jeopardy.—The federal Constitution protects against double
jeopardy, but the Supreme Court famously failed to incorporate this right
against the states in Palko v. Connecticut,
197
where it said such protection
was not implicit in the concept of ordered liberty.
198
It turns out, however,
that in 1868 fully thirty-one states—or over three-quarters of the total—had
clauses in their state constitutions that provided that no person could be put
in jeopardy twice for the same offense. Typically these clauses stated, “No
person’s life or liberty shall be twice placed in jeopardy for the same
offence.”
199
Thus, it would appear, contrary to Palko, that there was an
Article V consensus for constitutional protection against double jeopardy in
1868 as a right that was implicit in ordered liberty. Palko was overruled and
the Fourteenth Amendment was held to bar double jeopardy in Benton v.
Maryland.
200
Looking at matters by population, 86% of the American people
in 1868 lived in states where double jeopardy was unconstitutional. All
Midwestern–Western state constitutions had clauses banning double
jeopardy, compared to 80% of Southern and 70% of Northeastern states.
Bans on double jeopardy appeared with the same frequency in state constitu-
tions that were adopted before and after 1855.
2. Habeas Corpus.—The federal Constitution provides a criminal-
procedure right in Article I, Section Nine that forbids Congress from
suspending the writ of habeas corpus, thus prohibiting the detention of indi-
viduals without trial, except in cases of invasion or armed rebellion.
201
There
was a comparable consensus opposing suspension of the Great Writ in thirty-
six states in 1868, making an Article V, three-quarters consensus. In most of
the habeas clauses, an exception was granted for cases of rebellion or
invasion. Delaware’s constitution, for example, stated, “The privilege of the
writ of habeas corpus shall not be suspended unless when in cases of rebel-
lion or invasion the public safety may require it.”
202
Looking at matters by
population, 96% of the American people in 1868 lived in states whose con-
stitutions guaranteed the availability of the Great Writ. The only state
without a clause guaranteeing the availability of habeas corpus in its
197. 302 U.S. 319 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969).
198. Id. at 328.
199. E.g., M
ISS. CONST. of 1868, art. I, § 5.
200. 395 U.S. 784, 793–96 (1969).
201. Note that although Article I, Section Nine ultimately limits Congress’s powers with regard
to habeas corpus, its scope and availability is largely determined by statute. See 28 U.S.C. §§ 2254–
2255 (2000) (providing procedures for writs of habeas corpus for persons in state and federal
custody).
202. D
EL. CONST. of 1831, art. I, § 13.
60 Texas Law Review [Vol. 87:7
constitution was Massachusetts, a Northeastern state, and its constitution in
1868 had been ratified before 1855.
3. Self-incrimination.—The Fifth Amendment to the federal Bill of
Rights famously guarantees a right in federal trials to be protected from self-
incrimination. However, the Supreme Court—over the heated dissent of
Justice Hugo Black—declined to incorporate that right in Adamson v.
California,
203
concluding protection from self-incrimination was not
fundamental.
204
The Supreme Court subsequently overruled Adamson,
205
and
today the Fourteenth Amendment does protect individuals from self-
incrimination in state criminal cases. Our historical research suggests that
Justice Black was right in Adamson and Justice Felix Frankfurter, who wrote
the majority, was wrong at least as to whether the right against self-
incrimination was historically fundamental. Fully thirty-four of the thirty-
seven states in 1868—or an Article V, three-quarters federal consensus—had
explicit language in their state constitutions that stated that no criminal de-
fendant could be compelled to be a witness against himself. Typically, state
self-incrimination clauses in 1868 provided, “That no man ought to be com-
pelled to give evidence against himself in a criminal case.”
206
Ninety-one
percent of the American people living in 1868—a huge supermajority—lived
in states that had this right. The right against self-incrimination was recog-
nized by 93% of the Southern state constitutions, by 92% of the Midwestern–
Western state constitutions, and by 90% of the Northeastern state constitu-
tions in 1868. Ninety-four percent of the pre-1855 and 89% of the post-1855
constitutions protected against self-incrimination.
This raises an interesting question as to how Justice Frankfurter could
have failed to find that freedom from self-incrimination was a fundamental,
unenumerated right under the Fourteenth Amendment. The answer may be
that Justice Frankfurter, who was born in Vienna, Austria, and who had a
life-long fascination with the civil law legal tradition of continental Europe,
may have been moved by the fact that France and Germany did not recognize
a right against self-incrimination.
207
Accordingly, he might not have recog-
nized such a right. Ironically, if Justice Frankfurter had known as much
203. 332 U.S. 46 (1947), overruled by Malloy v. Hogan, 378 U.S. 1 (1964).
204. Id. at 51–53.
205. See Malloy, 378 U.S. at 6 (overruling Adamson).
206. E.g., M
D. CONST. of 1867, Declaration of Rights, art. 22.
207. Kurt Madlener, The Protection of Human Rights in the Criminal Procedure of the Federal
Republic of Germany, in H
UMAN RIGHTS IN CRIMINAL PROCEDURE 238, 250 (John A. Andrews
ed., 1982) (stating that the right against self-incrimination was first inserted into German law after
World War II); Mike Redmayne, Rethinking the Privilege Against Self-Incrimination, 27 O.J.L.S.
209, 220 (2007) (explaining that although a defendant in France has the privilege against self-
incrimination, it is seldom exercised because all defendants are questioned by the court and
“[s]ilence is not a realistic option”).
2008] Individual Rights Under State Constitutions in 1868 61
about American history as he knew about comparative law he might have
reached a different conclusion in the Adamson case.
4. Right to Counsel.—Another vitally important criminal-procedure
guarantee is the right to counsel. The Supreme Court ruled in 1932 in the
infamous Scottsboro Boys Case, Powell v. Alabama,
208
that the right to coun-
sel in capital cases was implied in the Bill of Rights as a fundamental
freedom.
209
This right was guaranteed in one of two ways in state
constitutions: either explicitly, or through the right to be heard by oneself or
counsel. As an example of the latter, Illinois guaranteed that “in all criminal
prosecutions the accused hath a right to be heard by himself and
counsel . . . .”
210
One of the more explicit rights, guaranteed in Georgia, for
example, stated, “Every person charged with an offence against the laws
shall have the privilege and benefit of counsel . . . .”
211
Thirty-four states—or a three-quarters majority—guaranteed a right to
counsel in one of these two ways. Looking at the matter by population, 91%
of Americans—a huge supermajority—lived in states in 1868 that guaranteed
a right to counsel in some form. This right was found in 100% of
Northeastern state constitutions in 1868, in 93% of Southern state
constitutions, and in 83% of Midwestern–Western state constitutions. Rec-
ognition of the right to counsel in criminal cases could be found in 89% of
the pre-1855 constitutions and in 95% of the post-1855 constitutions.
Twelve states had explicit rights to counsel. A typical such clause read:
“[T]he accused shall . . . have the assistance of counsel for his
defence . . . .”
212
An additional seventeen states had rights to be heard by self
and counsel, which strongly suggests a right to counsel. Typically, these
clauses provided, “[I]n all criminal prosecutions the accused hath a right to
be heard by himself and his counsel . . . .”
213
Five additional states had
somewhat more ambiguous rights to be heard by self or counsel, providing,
for example, “[E]very subject shall have a right . . . to be fully heard in his
defence by himself, or his counsel at his election.”
214
We read all three types
of clauses as providing the right to counsel in criminal prosecutions, but we
have described them separately to allow for alternative interpretations.
Although, as this evidence shows, many states recognized the right to
counsel in their constitutions, it was not until 1963 in Gideon v.
208. 287 U.S. 45 (1932).
209. Id. at 67.
210. I
LL. CONST. of 1848, art. XIII, § 9.
211. G
A. CONST. of 1868, art. I, § 7.
212. E.g., W.
VA. CONST. of 1861, art. II, § 8.
213. E.g., P
A. CONST. of 1838, art. IX, § 9.
214. E.g., M
ASS. CONST. of 1780, pt. 1, art. XII.
62 Texas Law Review [Vol. 87:7
Wainwright
215
that the Supreme Court affirmed the right for state court
defendants to have counsel in felony trials.
216
5. Speedy Trial.—Another criminal-procedure guarantee of the federal
Constitution is the right to a speedy trial.
217
Twenty-nine of the thirty-seven
states in 1868—or a three-quarters, Article V consensus of the states—
guaranteed criminal defendants the right to a speedy trial. Often paired with
the right to a public trial, a typical clause guaranteeing a right to a speedy
trial stated, “In all criminal prosecutions the accused shall enjoy the right to a
speedy and public . . . .”
218
A huge supermajority of Americans in 1868—
fully 82%—lived in states where this right was constitutionally protected. A
right to a speedy trial was present in 90% of Northeastern state constitutions,
80% of Southern state constitutions, and 75% of Midwestern–Western state
constitutions. A constitutional right to a speedy trial was found in 89% of the
pre-1855 constitutions and 74% of the post-1855 constitutions. The federal
right was incorporated against the states in Klopfer v. North Carolina in
1967.
219
6. Public Trial.—Another fundamental criminal-procedure right is the
right to a public trial.
220
Twenty-four states out of thirty-seven—or a major-
ity but not an Article V consensus—guaranteed criminal defendants the right
to a public trial. Often paired with the right to a speedy trial, a typical clause
guaranteeing a right to a public trial stated, “In all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial . . . .”
221
By
population, a solid majority of Americans in 1868—58%—lived in states that
protected this right. Protection of the right to a public trial varied widely by
geography. The right could be found in 1868 in 83% of Midwestern–
Western state constitutions, in 60% of Southern state constitutions, and in
50% of Northeastern state constitutions. The right to a public trial could be
found in 1868 in 67% of the pre-1855 and in 63% of the post-1855
constitutions. The Sixth Amendment right to a public trial was applied to the
states through the Fourteenth Amendment in 1948.
222
215. 372 U.S. 335 (1963).
216. Id. at 344. As mentioned above, thirty years earlier the infamous Scottsboro Boys Case
established the right to counsel only in capital cases. 287 U.S. 45, 67 (1932).
217. U.S.
CONST. amend. VI. See generally Barker v. Wingo, 407 U.S. 514, 530 (1972)
(setting out a four-part balancing test for determining whether a defendant’s speedy-trial right has
been violated).
218. E.g., A
RK. CONST. of 1868, art. I, § 8.
219. 386 U.S. 213, 223 (1967).
220. U.S.
CONST. amend. VI.
221. E.g., A
RK. CONST. of 1868, art. I, § 8.
222. See In re Oliver, 333 U.S. 257, 273 (1948) (“In view of this nation’s historic distrust of
secret proceedings . . . the Fourteenth Amendment’s guarantee that no one shall be deprived of his
2008] Individual Rights Under State Constitutions in 1868 63
7. Confrontation.—Yet another criminal-procedure guarantee of the
federal Bill of Rights that the Supreme Court, led by Justices Scalia and
Thomas, has done a lot to resurrect in recent years
223
is the Confrontation
Clause.
224
This Clause guarantees criminal defendants the right to confront
the witnesses against them.
225
Thirty-two out of thirty-seven state constitu-
tions in 1868—or an Article V, three-quarters consensus—contained
confrontation clauses. Typically, the state constitutional confrontation
clauses stated, “In all criminal prosecutions the accused shall have a right
to . . . be confronted with the witnesses against him . . . .”
226
A huge
supermajority of Americans—85%—lived in states with confrontation
clauses in their state constitutions in 1868. Such clauses could be found in
90% of Northeastern state constitutions, in 87% of Southern state
constitutions, and in 83% of Midwestern–Western state constitutions. There
was not much variation by date, with confrontation clauses being present in
89% of the pre-1855 and 84% of the post-1855 constitutions.
Fifteen states explicitly guaranteed the right to confront witnesses face-
to-face. For example, Wisconsin’s constitution provided, “In all criminal
prosecutions, the accused shall enjoy the right . . . to meet the witnesses face
to face.”
227
This variation of the confrontation clauses is important because
Justices Scalia and Thomas have argued that the federal Confrontation
Clause requires face-to-face confrontation, although such language is not
explicitly used.
228
The federal right was incorporated against the states in
Pointer v. Texas in 1965.
229
8. Obtain Witnesses.—Another vital criminal-procedure right is the
right to have compulsory process for obtaining witnesses in one’s favor.
This right is explicitly protected by the Sixth Amendment of the federal Bill
of Rights. Unsurprisingly, therefore, a substantial majority of twenty-seven
out of thirty-seven states—or over two-thirds—guaranteed criminal defen-
dants the right to have compulsory process for obtaining witnesses in their
favor. Such state bill of rights provisions typically provided, “In all criminal
liberty without due process of law means at least that an accused cannot be thus sentenced to
prison.”).
223. See Crawford v. Washington, 541 U.S. 36, 60 (2004) (arguing that the Confrontation
Clause has become distorted over time and that the Court’s interpretation should return to its
original meaning).
224. U.S.
CONST. amend. VI.
225. Id.
226. E.g., N.J.
CONST. of 1844, art. I, § 8.
227. W
IS. CONST. of 1848, art. I, § 7.
228. See, e.g., Crawford, 541 U.S. at 59, 50–59 (strengthening Confrontation Clause protection
for cases involving testimonial evidence by asserting that the Confrontation Clause applies to both
in-court and out-of-court testimony to the extent that “[t]estimonial statements of witnesses absent
from trial have been admitted only where the declarant is unavailable and only where the defendant
has had a prior opportunity to cross-examine”).
229. 380 U.S. 400, 403 (1965).
64 Texas Law Review [Vol. 87:7
prosecutions, the accused shall enjoy the right . . . to have compulsory proc-
ess to compel the attendance of witnesses in his behalf . . . .”
230
Looking at
the prevalence of this right by population, it turns out that 73% of Americans
in 1868—almost three-quarters of the total population—lived in states where
this right was constitutionally protected. Geographically, the right to obtain
witnesses was present in 83% of Midwestern–Western state constitutions in
1868, in 73% of Southern state constitutions, and in 60% of Northeastern
constitutions. The right to compel the attendance of witnesses on one’s own
behalf was equally present in older and more recent state constitutions.
9. Informed of Charges.—The federal Bill of Rights in the Sixth
Amendment gives the accused the right to be “informed of the nature and
cause of the accusation” against him.
231
Once again, state bills of rights over-
whelmingly protected this federal criminal-procedure right in 1868 as well.
Thirty-one out of thirty-seven states—or over three-quarters—guaranteed
criminal defendants the right to be informed of the charges against them.
This is, of course, an Article V consensus of states needed for the making of
federal constitutional law. A typical such clause said, “In all criminal prose-
cutions the accused hath a right to . . . demand the nature and cause of the
accusation against him . . . .”
232
Looking at the question by population, 82%
of Americans living in 1868 lived in states where this right was protected.
Geographically, the right was found in 90% of Northeastern constitutions,
83% of Midwestern–Western constitutions, and in 80% of Southern
constitutions. Defendants’ right to be informed of the nature and cause of the
accusations against them was present in 89% of the pre-1855 constitutions
and in 79% of the post-1855 constitutions. The Sixth Amendment right to be
notified of charges was incorporated in 1948 in In re Oliver.
233
10. Other Miscellaneous Criminal Procedure Guarantees.—Our study
turned up three other miscellaneous criminal-procedure guarantees in a hand-
ful of state constitutions that are not present in the federal Bill of Rights.
One state, North Carolina, had a clause in its state constitution that provided,
“Every person restrained of his liberty is entitled to a remedy to inquire into
the lawfulness thereof, and to remove the same if unlawful; and such remedy
ought not to be denied or delayed.”
234
This could be read to guarantee the
availability of collateral review at all times, although it may just guarantee
habeas corpus. Three percent of the population lived in North Carolina in
1868, and its constitution was ratified after 1855.
230. E.g., WIS. CONST. of 1848, art. I, § 7.
231. U.S.
CONST. amend. VI.
232. E.g., P
A. CONST. of 1838, art. IX, § 9.
233. 333 U.S. 257, 273 (1948).
234. N.C.
CONST. of 1868, art. I, § 18.
2008] Individual Rights Under State Constitutions in 1868 65
Another state, Rhode Island, guaranteed the presumption of innocence
in explicit constitutional language. Rhode Island’s bill of rights provided,
“Every man being presumed innocent until he is pronounced guilty by the
law, no act of severity which is not necessary to secure an accused person
shall be permitted.”
235
Less than 1% of the U.S. population lived in Rhode
Island in 1868, and its constitution was ratified before 1855.
Finally, two states protected their citizens from detention or
punishment, except in cases clearly warranted by law.
236
These clauses
appear to overlap with state due process clauses about which we shall have
more to say below. Four percent of the American people lived in states that
protected this right in 1868. These states were in the Northeast and the
South, one with a constitution before 1855 and one from after 1855.
F. Due Process
Perhaps the most consequential clause of the federal Bill of Rights is the
provision in the Fifth Amendment that says, “No person shall be . . . deprived
of life, liberty, or property without due process of law.”
237
This clause was
the only provision of the federal Bill of Rights relied on by the U.S. Supreme
Court to strike down an act of Congress as unconstitutional prior to the Civil
War.
238
In Dred Scott v. Sandford,
239
the Court read substantive content into
the Fifth Amendment Due Process Clause and concluded that a federal stat-
ute that deprived slave owners of their “right” to bring their slaves into
federal territories was a deprivation of property “without due process of
law.”
240
Critics of substantive due process responded that the Due Process
Clause was originally meant to protect against only arbitrary and capricious
executive deprivations of rights; deprivations pursuant to statute were always
okay because the enactment of a statute was all the process that was due.
241
This argument that the Due Process Clause protects only against arbitrary
and capricious executive or judicial action and not against arbitrary and ca-
pricious statutes is bolstered when one looks at the clause in the Magna Carta
from which the federal Due Process Clause derives, the per legem terrae
235. R.I. CONST. of 1842, art. I, § 14.
236. See A
LA. CONST. of 1867, art. I, § 9 (“That no person shall be accused, or arrested, or
detained, except in cases ascertained by law, and according to the forms which the same has
prescribed . . . .”); C
ONN. CONST. of 1818, art. I, § 10 (“No person shall be arrested, detained, or
punished, except in cases clearly warranted by law.”).
237. U.S. C
ONST. amend. V.
238. Akhil Reed Amar, 2000 Daniel J. Meador Lecture: Hugo Black and the Hall of Fame, in
53 A
LA. L. REV. 1221, 1223 (2002).
239. 60 U.S. (19 How.) 393 (1856).
240. Id. at 450–52.
241. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 M
ICH. L.
REV. 1517, 1531–32 (2008) (explaining that the Due Process Clauses, as interpreted by originalists,
are meant only to constrain arbitrary and capricious action by the Executive and are not meant to
require that legislation be reasonable in the eyes of the Judiciary).
66 Texas Law Review [Vol. 87:7
clause.
242
That provision said that no one could be deprived of their rights
“except by the law of the land.”
243
This seemed to be a protection against
arbitrary and capricious deprivations by the King’s sheriffs but not a protec-
tion against what Parliament might enact “by the law of the land.”
244
As we
look at state due process clauses below, consider whether they bolster the
procedural- or the substantive-due-process understanding of the Fifth or
Fourteenth Amendment federal Due Process Clauses.
Thirty states out of thirty-seven in 1868—or an Article V, three-quarters
consensus—had clauses in their state constitutions that explicitly prohibited
the deprivation of life, liberty, or property without due process of law or by
the law of the land.
245
A typical such due process clause, in the Georgia con-
stitution, provided, “No person shall be deprived of life, liberty, or property,
except by due process of law.”
246
Many of the thirty states with due process
clauses in their state bills of rights used the old English Magna Carta formu-
lation that deprivations of life, liberty, or property were not allowed except
“by the law of the land.”
247
A typical example is the New Hampshire
Constitution, which stated, “[N]o subject shall be arrested, imprisoned,
despoiled, or deprived of his property, immunities, or privileges, put out of
the protection of the law, exiled, or deprived of his life, liberty, or estate but
by the judgment of his peers or the law of the land.”
248
All in all, eighteen of
the thirty states with due process clauses in 1868 used the “by the law of the
land” language while fourteen used the words “due process of law.” Two
states—Minnesota and New York—had both a clause with “by law of the
land” language
249
and a clause with “due process of law” language.
250
This
242. MAGNA CARTA ch. 39.
243. Id.
244. See In re Winship, 397 U.S. 358, 385 (1970) (Black, J., dissenting) (contending that state
legislatures are a manifestation of the constitutional right of self-government, and therefore that the
Court should only interfere with this right when laws conflict with the Constitution); Griswold v.
Connecticut, 381 U.S. 479, 513 (1965) (Black, J., dissenting) (denying that the Court has the power
to “measure constitutionality by [its] belief that legislation is arbitrary, capricious or
unreasonable”); B
ORK, supra note 1, at 32 (suggesting that due process was thought to be protected
by “the law of the land” but, as Justice Black argued in In re Winship, was put in question when
judges took their interpretive role too far).
245. One exception, Virginia, prohibited deprivation of liberty without due process, but did not
mention life or property. V
A. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of
1776, Declaration of Rights, § 8).
246. G
A. CONST. of 1868, art. I, § 3.
247. See Washington v. Glucksberg, 521 U.S. 702, 757, 756–57 (1997) (Souter, J., concurring)
(mentioning that before the ratification of the Fourteenth Amendment, state constitutions commonly
contained either due process clauses similar to that found in the Fifth Amendment or language from
the Magna Carta that served as a textual antecedent to such due process clauses).
248. N.H.
CONST. of 1784, pt. I, art. XV.
249. M
INN. CONST. of 1857, art. I, § 2 (“No member of this State shall be disfranchised, or
deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the
land, or the judgment of his peers.”); N.Y.
CONST. of 1846, art. I, § 1 (“No member of this State
shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof,
unless by the law of the land or the judgment of his peers.”).
2008] Individual Rights Under State Constitutions in 1868 67
may bolster the notion that the two formulations did have distinct meanings.
The fact that so many states in 1868 continued to use the “by the law of the
land” language in their state due process clauses suggests there was no
Article V, three-quarters-of-the-states consensus that due process clauses had
substantive content.
Looking at the issue by population, 82% of Americans in 1868—a
huge supermajority—lived in states with either due process or “by the law of
the land” guarantees. Thirty-five percent of the total population lived in
states with due process clauses and 60%—a large majority—lived in states
with “by the law of the land” clauses. The prevalence of due process or “by
the law of the land” clauses varied by region. Such clauses were to be found
in 100% of Southern state constitutions, 90% of Northeastern constitutions,
and only 50% of Midwestern–Western constitutions. The language of due
process was used in 47% of Southern constitutions, 20% of Northeastern
constitutions, and 58% of Midwestern–Western constitutions. The “by the
law of the land” language, in contrast, appeared in 53% of Southern
constitutions, 80% of Northeastern constitutions, and 16% of Midwestern–
Western constitutions. Seventy-eight percent of the pre-1855 constitutions
and 84% of the post-1855 constitutions contained either the due process or
the “by the law of the land” formulation. The “by the law of the land” for-
mulation was more common in pre-1855 constitutions while the due process
formulation was far more common in the post-1855 constitutions.
Specifically, 61% of the “by the law of the land” formulations were found in
pre-1855 constitutions whereas 71% of the “due process” formulations were
found in post-1855 constitutions. The trend, as the majority in Roper v.
Simmons
251
might say, was toward preferring the language of due process
over the “by the law of the land” formulation.
252
In sum, there was an
Article V consensus of three-quarters of the states that procedural due
process was a fundamental right in 1868, but there was no such Article V
consensus with respect to substantive due process. The right to procedural
due process is thus an important criminal and civil right. This may be of help
in informing the meaning of the Due Process Clause of the Fourteenth
Amendment, which was of course adopted as part of the Amendment in
1868. The question whether this Clause has a substantive component has
vexed the Court for the last 140 years.
250. MINN. CONST. of 1857, art. I, § 7 (“No person shall be . . . deprived of life, liberty or
property without due process of law.”); N.Y.
CONST. of 1846, art. I, § 6 (“No person shall . . . be
deprived of life, liberty, or property without due process of law . . . .”).
251. 543 U.S. 551 (2005).
252. See id. at 565–66 (noting the significance of consistency in the direction of change).
68 Texas Law Review [Vol. 87:7
G. Criminal and Civil Procedure Rights Borrowed from the Original
Constitution
We have now looked at the prevalence in state constitutions of the
criminal-procedure guarantees that appear in the federal Bill of Rights. This
does not end our criminal-procedure inquiry, however, because Article I,
Sections Nine and Ten of the federal Constitution also guarantee two such
rights. First, Congress and the states are forbidden from passing any ex post
facto laws or bills of attainder.
253
In addition, the states, but not Congress,
are barred from passing any laws that impair the obligation of contracts.
254
Impairments of contracts could be retroactive civil laws of a certain type.
The federal Constitution also contains two other criminal-procedure
guarantees. Article III, Section Three forbids federal laws that work
corruption of the blood, and it narrows the definition of treason in federal
law.
255
To what extent, then, did state bills of rights in 1868 protect any or
all of these rights?
1. Ex Post Facto Laws.—An ex post facto law is one that criminally
punishes an act that was legally permissible when it was done.
256
The
Supreme Court initially considered and developed a test for the Ex Post
Facto Clause in Calder v. Bull in 1798.
257
Unsurprisingly, our nose count
revealed that twenty-nine out of thirty-seven states—or over three-quarters—
prohibited ex post facto laws. The clauses typically provided, “No ex post
facto law, nor any law impairing the obligation of contracts, shall ever be
made . . . .”
258
Ex post facto clauses were usually coupled with clauses ad-
dressing obligations of contracts, corruption of blood, bills of attainder, or a
combination of the three. About 73% of the population in 1868—or slightly
less than three-fourths—lived in states with bans on ex post facto laws. Ex
post facto law clauses were found in 87% of Southern state constitutions, in
83% of Midwestern–Western state constitutions, and in 60% of Northeastern
state constitutions. They were present in 72% of the pre-1855 and 84% of
the post-1855 state constitutions. These state constitutional clauses were, of
course, superfluous because Article I, Section Ten of the federal Constitution
already forbade the states from enacting ex post facto laws.
259
2. Retroactive Civil Laws.—Also in Calder v. Bull, the U.S. Supreme
Court famously ruled that the federal Ex Post Facto Clause applied only to
253. U.S. CONST. art. I, § 9, cl. 3; U.S. CONST. art. I, § 10, cl. 1.
254. U.S.
CONST. art. I, § 10, cl. 1.
255. U.S.
CONST. art. III, § 3.
256. B
LACK’S LAW DICTIONARY 620 (8th ed. 2004).
257. See 3 U.S. (3 Dall.) 386, 390 (1798) (explaining that only an act of the legislature, rather
than that of a private person, can make an act illegal ex post facto).
258. E.g., I
LL. CONST. of 1848, art. XIII, § 17.
259. U.S.
CONST. art. I, § 10, cl. 1.
2008] Individual Rights Under State Constitutions in 1868 69
retroactive criminal laws and not to retroactive civil laws.
260
Retroactive
civil laws thus are not prevented by the Ex Post Facto Clause, although they
can be challenged under the Due Process Clause.
261
It is interesting in this
respect that only a small minority of four states had clauses in their state con-
stitutions in 1868 that explicitly prohibited retroactive (or retrospective) civil
laws. A typical such clause said, “No bill of attainder, ex post facto law, ret-
roactive law, or any law impairing the obligation of contracts, shall be
made.”
262
Thirteen percent of the population lived in these states, all of
which were in the South. The constitutions of these states constituted 6% of
the pre-1855 constitutions and 16% of the post-1855 constitutions.
263
All
four of the state constitutions here were ratified after Calder v. Bull was de-
cided. Justice Clarence Thomas has urged the Court to reconsider Calder
and extend ex post facto protection to civil laws.
264
3. Bills of Attainder.—Article I, Sections Nine and Ten of the federal
Constitution prohibit federal and state governments from adopting bills of
attainder, which are laws that direct the punishment of a particular person or
group of people.
265
The Supreme Court has stated that “the Bill of Attainder
Clause was intended not as a narrow, technical . . . prohibition, but rather as
an implementation of the separation of powers, a general safeguard against
legislative exercise of the judicial function.”
266
Only twenty-two out of
thirty-seven states—a simple majority—prohibited bills of attainder in their
state bills of rights even though the federal Constitution already forbade the
states from enacting them. Of course, many states may have thought such
prohibitions unnecessary in light of the federal constitutional proscription of
bills of attainder. A typical state constitutional bill-of-attainder clause stated,
“No bill of attainder, ex post facto law, or law impairing the obligation of a
contract shall be passed.”
267
Fifty-three percent of Americans in 1868 lived
in states with this right in their state constitution. Protection of the right was
fairly evenly distributed across the country, with the prohibition on bills of
attainder being found in 67% of Southern state constitutions, 58% of
Midwestern–Western state constitutions, and 50% of Northeastern state
260. 3 U.S. (3 Dall.) at 390–91.
261. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976) (calling for a rational
basis test for the evaluation of retroactive civil laws).
262. E.g., T
EX. CONST. of 1868, art. I, § 14.
263. But see Calder, 3 U.S. (3 Dall.) at 390 (“[T]he legislatures of several of the states, to wit,
Massachusetts, Pennsylvania, Delaware, Maryland, and North and South Carolina, are expressly
prohibited, by their state Constitutions, from passing any ex post facto law.”).
264. See Eastern Enters. v. Apfel, 524 U.S. 498, 539, 538–39 (1998) (Thomas, J., concurring)
(“I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil
law . . . is . . . unconstitutional under the Ex Post Facto Clause.”).
265. B
LACK’S LAW DICTIONARY 176 (8th ed. 2004).
266. United States v. Brown, 381 U.S. 437, 442 (1965).
267. E.g., W.
VA. CONST. of 1861, art. II, § 1.
70 Texas Law Review [Vol. 87:7
constitutions. Forty-four percent of the pre-1855 state constitutions and 74%
of the post-1855 constitutions forbade bills of attainder.
4. Corruption of Blood.—The federal Constitution forbids federal but
not state laws that work corruption of the blood.
268
A typical such law would
apply criminal penalties or fines against not only those convicted of crimes
but also against their descendants.
269
Twenty states out of thirty-seven in
1868—a majority but not an Article V, three-quarters consensus—had provi-
sions in their state bills of rights that prohibited convictions working
corruption of blood. A typical such clause provided, “No conviction shall
work corruption of blood or forfeiture of estate.”
270
These clauses ban
corruption of the blood only from convictions and not because one’s
ancestors were, for example, potentially slave owners. Sixty percent of the
American people in 1868 lived in states with clauses in their state constitu-
tions that forbade convictions from working corruption of the blood. Such
clauses could be found in 67% of Midwestern–Western state constitutions,
60% of Southern state constitutions, and 30% of Northeastern state
constitutions. Fifty percent of the pre-1855 and 58% of the post-1855
constitutions prohibited convictions from working corruption of the blood.
5. Impairment of Contracts.—The federal Constitution forbids the
states from passing laws impairing the obligation of contracts, and twenty-
five out of thirty-seven states in 1868—or just over two-thirds—concurred
and prohibited laws impairing the obligation of contracts in their state bills of
rights. A typical clause of this type provided, “No ex post facto law, or law
impairing the obligation of contracts, shall be passed.”
271
Sixty-three
percent—or just under two-thirds—of the total population in 1868 lived in
states with constitutions that forbade laws impairing the obligation of
contracts. Contract clauses were present in 83% of Midwestern–Western
state constitutions, in 73% of Southern state constitutions, and in 40% of
Northeastern state constitutions. Contract clauses could be found in 61% of
the pre-1855 and in 74% of the post-1855 constitutions.
6. Treason.—The federal Constitution limits the definition of treason in
federal cases,
272
and state constitutions in 1868 largely followed suit.
Twenty-seven states—or over two-thirds—limited the definition of treason.
268. See, e.g., U.S. CONST. art. III, § 3, cl. 2.
269. B
LACK’S LAW DICTIONARY 371 (8th ed. 2004).
270. E.g., I
ND. CONST. of 1851, art. I, § 30.
271. E.g., R.I.
CONST. of 1842, art. I, § 12.
272. See U.S.
CONST. art. III, § 3, cl. 1 (“Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No
person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.”).
2008] Individual Rights Under State Constitutions in 1868 71
Sixty-two percent—slightly less than two-thirds—of the total population in
1868 lived in states where the definition of treason was limited. The defini-
tion of treason was limited in 83% of Midwestern–Western constitutions, in
73% of Southern constitutions, and in 60% of Northeastern state constitu-
tions in 1868. Narrowed definitions of treason were less common in pre-
1855 state constitutions, of which only 61% had such clauses, as compared to
84% of the post-1855 state constitutions. These clauses typically established
that treason could consist only of levying war against the state, adhering to
its enemies, or giving them aid and comfort. For example, Arkansas
provided, “Treason against the State shall only consist in levying war against
the same, or in adhering to its enemies, giving them aid and comfort. No
person shall be convicted of treason unless on the testimony of two witnesses
to the same overt act, or on confession in open court.”
273
Like Arkansas,
most states provided that no person be convicted of treason unless on the tes-
timony of two witnesses to the same overt act, or confession in open court.
274
H. Property Rights
The federal Bill of Rights starts by protecting religious freedom; it
then protects freedom of expression, then guns and the military, then unrea-
sonable searches, and then criminal procedure. The next major topic
addressed by the federal Bill of Rights, a topic addressed in the middle of the
criminal-procedure sections, is property rights.
275
Specifically, the Takings
Clause of the Fifth Amendment provides that private property shall not be
taken for public use without just compensation being paid.
276
Many ques-
tions have arisen about this language. Are takings for private use ever
allowed?
277
Are regulations that impair the value of property also takings, or
are only physical invasions takings?
278
How is just compensation to be
determined?
279
Ironically, although the Takings Clause appears only in the
middle of the Bill of Rights, it was the first Clause to be incorporated into the
273. ARK. CONST. of 1868, art. I, § 11.
274. L
A. CONST. of 1868, tit. VI, art. 101.
275. For an excellent discussion of property rights in the Constitution, see generally Frank I.
Michelman, Property as a Constitutional Right, 38 W
ASH. & LEE L. REV. 1097 (1981).
276. U.S.
CONST. amend. V.
277. See generally Kelo v. City of New London, 545 U.S. 469, 472, 489–90 (2005) (holding
that a transfer of land from one private owner to another was permissible because expected
communal economic growth constituted public use).
278. See generally Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.
302, 306 (2002) (holding that, considering the impact of the regulations and the importance of the
public interest involved, temporary regulations pursuant to a valid state objective that impair the
value of property do not amount to takings).
279. See generally United States v. 564.54 Acres of Land, 441 U.S. 506, 511–12 (1979)
(holding that the fair-market value of the property is generally sufficient to compensate the owner
and that the need for a relatively objective standard requires that the subjective value of the property
to the owner not factor into the amount of compensation).
72 Texas Law Review [Vol. 87:7
Fourteenth Amendment as a matter of substantive due process.
280
To what
extent then did state constitutions protect private property in 1868 when the
Fourteenth Amendment was ratified? Was the early incorporation of the
Takings Clause in any way justified?
1. Takings Clauses.—Takings clauses place important limits on the
government power of eminent domain. Thirty-three states out of thirty-seven
in 1868 had takings clauses in their constitutions. This is easily an Article V
consensus of the states for the making of federal constitutional law. A typi-
cal takings clause in a state constitution at this time provided, “Private
property shall not be taken for public uses without just compensation
therefor.”
281
Ninety-one percent of the American people in 1868—a huge
supermajority—lived in states with takings clauses in their state
constitutions. Such clauses could be found in 100% of Northeastern state
constitutions, in 92% of Midwestern–Western state constitutions, and in 80%
of Southern state constitutions. Takings clauses were notably more common
in older state constitutions, and they could be found in 100% of the pre-1855
constitutions and in 79% of the post-1855 constitutions. Alabama and South
Carolina’s clauses also specifically prohibited transfers for private use,
282
which is interesting because they would bar Kelo-like outcomes.
283
Of
course, the other states may just have assumed that it was obvious that tak-
ings for private use were forbidden and that there was no need to state it
explicitly. Alternatively, one could read something portentous into the fail-
ure of these states to ban takings for private use. New Hampshire’s takings
clause is slightly different from the others in that it does not require just
compensation.
284
One other state constitution, that of Georgia, contains a
related clause that provides, “Private ways may be granted upon just com-
pensation being paid by the applicant.”
285
280. See Chi., Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 241 (1897) (holding
that a judgment by a state court taking private property for public use without just compensation is a
violation of the Due Process Clause of the Fourteenth Amendment); C
HEMERINSKY, supra note
168, at
458–69 (detailing the cases regarding the incorporation of the Bill of Rights into the Due
Process Clause of the Fourteenth Amendment, and listing Chicago, Burlington & Quincy as the
first).
281. E.g., A
RK. CONST. of 1868, art. I, § 15.
282. A
LA. CONST. of 1867, art. I, § 25 (“That private property shall not be taken or applied for
public use, unless just compensation be made therefor; nor shall private property be taken for
private use, or for the use of corporations, other than municipal, without the consent of the
owner . . . .”); S.C.
CONST. of 1868, art. I, § 23 (“Private property shall not be taken or applied for
public use, or for the use of corporations, or for private use, without the consent of the owner or a
just compensation being made therefor . . . .”).
283. See supra note 277.
284. See N.H.
CONST. of 1784, pt. I, art. XII (“But no part of a man’s property shall be taken
from him, or applied to public uses, without his own consent, or that of the representative body of
the people.”).
285. G
A. CONST. of 1868, art. I, § 20.
2008] Individual Rights Under State Constitutions in 1868 73
2. Monopolies.—Another question that arose early in the history of the
Fourteenth Amendment was whether the Amendment conferred on
individuals a fundamental right to be free of having to compete with
monopolies or the right to practice their professions without permission from
the state. The U.S. Supreme Court famously addressed these questions in its
five-to-four decision in 1873 in The Slaughterhouse Cases.
286
A majority of
the Court, over some very spirited dissents, found no fundamental right to be
free of monopolies or to practice one’s profession without government per-
mission in the Fourteenth Amendment.
287
(In fact, the Slaughterhouse
majority construed the Fourteenth Amendment in an absurdly narrow way,
which has been roundly excoriated by courts and scholars.)
288
What, then, did state constitutional law say about these types of
economic freedoms in 1868? It turns out that only five states out of thirty-
seven in 1868—a small minority—banned monopolies for being contrary to
the spirit of a free state. Although all worded their state constitutional guar-
antees slightly differently, they generally declared, “[M]onopolies are odious,
contrary to the spirit of a free government and the principles of commerce,
and ought not to be suffered.”
289
Only 13% of Americans in 1868 lived in
states that banned monopolies in their state bills of rights. No Midwestern–
Western states banned monopolies, but antimonopoly clauses were found in
27% of Southern and 10% of Northeastern states. They were present in 11%
of the pre-1855 constitutions and 16% of the post-1855 constitutions. The
Slaughterhouse Court was, in our view, profoundly misguided in many
respects,
290
but the Court’s conclusion that there was no fundamental,
positive-law right to be free of monopolies in 1868 looks to have been a cor-
rect statement of the positive law at that time.
3. Legal Recourse.—No state in 1868 specifically addressed regulatory
takings of property, but state constitutions did overwhelmingly provide a
286. 83 U.S. (16 Wall.) 36 (1873).
287. See id. at 81 (doubting “very much whether any action of a State not directed by way of
discrimination against the negroes as a class, or on account of their race, will ever be held to come
within the purview of [the Fourteenth Amendment]”).
288. See C
HARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM 55 (1999) (stating that the
Slaughterhouse decision is “probably the worst holding, in its effect on human rights, ever uttered
by the Supreme Court”); Michael Anthony Lawrence, Second Amendment Incorporation Through
the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 M
O. L. REV. 1,
33 (2007) (“From the beginning, Slaughter-House was intensely criticized.”). But see Meadows v.
Odom, 356 F. Supp. 2d 639, 642 (M.D. La. 2005) (“While many legal scholars and lower courts
may have criticized portions of the Slaughter-House opinion, it is equally clear that the Slaughter-
House decision has never been overruled, and remains a binding precedent which this Court is
bound to follow.”).
289. E.g., MD. CONST. of 1867, Declaration of Rights, art. 41.
290. See Calabresi, supra note 241, at 1532; Calabresi, supra note 34, at 1108 (both asserting
that the Privileges or Immunities Clause was “gutted” by Slaughterhouse, but explaining that this
does not impact the Clause’s meaning for a “good originalist like [him]”).
74 Texas Law Review [Vol. 87:7
right of legal recourse for injuries, a right for which the federal Constitution
or Bill of Rights provides no analog. Thus, an astonishing twenty-eight out
of thirty-seven states in 1868, or an Article V, three-quarters consensus,
guaranteed their citizens the right to legal recourse for all injuries done to
their land, goods, person, or reputation. This could be argued to support the
Supreme Court’s holding in 1977 that there exists some kind of a
“fundamental constitutional right of access to the courts.”
291
However, this
right has only been examined at the federal level through narrow holdings
involving the right to appeal,
292
challenges to filing fee requirements,
293
and
prisoners’ access to the Judiciary.
294
A typical state clause provided, “All courts shall be open, and every
person, for an injury done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and justice administered without denial or
delay.”
295
This fundamental right effectuated the famous dictum in Marbury
v. Madison
296
where the Court quoted the English law principle that for every
right there must be a remedy.
297
This could even be argued to imply the exis-
tence of Bivens
298
-like causes of action where the legislature has not provided
for them.
299
Seventy-three percent of all Americans in 1868—slightly less than
three-fourths—lived in states that had provisions of this sort in their state
constitutions. A right to legal recourse could be found in 80% of
Northeastern state constitutions, in 75% of Midwestern–Western state
constitutions, and in 73% of Southern state constitutions. A right to legal
recourse was slightly more common in older constitutions, where it could be
found in 83% of those state constitutions ratified before 1855 but in only
68% of those ratified after 1855.
291. Bounds v. Smith, 430 U.S. 817, 828 (1977); see also Windsor v. McVeigh, 93 U.S. 274,
277, 280 (1876) (describing the right to be heard in court as “founded in the first principles of
natural justice”).
292. See, e.g., McKane v. Durston, 153 U.S. 684, 687–88 (1894) (holding that an appeal to a
higher court from a judgment of conviction is not a matter of absolute right, and a state may accord
it to the accused upon such terms as it thinks proper).
293. See, e.g., Gary S. Goodpaster, The Integration of Equal Protection, Due Process
Standards, and the Indigent’s Right to Free Access to the Courts, 56 I
OWA L. REV. 223, 230–31
(1970) (discussing cases in which petitioners sought to proceed in forma pauperis due to filing fee
requirements).
294. See, e.g., Ex parte Hull, 312 U.S. 546, 551 (1941) (holding that the petitioner failed to
adequately show he had been denied procedural due process).
295. E.g., O
HIO CONST. of 1851, art. I, § 16.
296. 5 U.S. (1 Cranch) 137 (1803).
297. Id. at 163.
298. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
299. See id. at 389 (holding that a violation of the Fourth Amendment’s prohibition on
unreasonable searches and seizures “by a federal agent acting under color of his authority . . . gives
rise to a cause of action for damages consequent upon his unconstitutional conduct”).
2008] Individual Rights Under State Constitutions in 1868 75
4. Suits Against the State.—Five states out of thirty-seven in 1868—a
small minority—specifically provided in their state constitutions, “Suits may
be brought against the State, according to such regulations as shall be made
by law.”
300
Thus, thirty-two states—or more than three-quarters of the
states—made no provision for such suits. Seventeen percent of all
Americans living in 1868 lived in states that had this right. The right could
be found in 20% of both Northeastern and Southern state constitutions, but in
no Midwestern–Western state constitutions at all. A state constitutional right
to sue the state was present in only 17% of the pre-1855 and 11% of the post-
1855 constitutions. It would thus seem that there was no widely accepted
fundamental right in 1868 to sue the state.
5. Property Escheat.—Another small minority of six states out of
thirty-seven declared that the people possess the ultimate right to property
within the state. A typical clause of this kind provided, “The people of this
State, in their right of sovereignty, are deemed to possess the original and
ultimate property in and to all lands within the jurisdiction of the State; and
all lands the title to which shall fail, from a defect of heirs, shall revert or
escheat to the people.”
301
Twenty-two percent of Americans in 1868 lived in
states with provisions like this in their state constitutions. Such provisions
could be found in 20% of Southern state constitutions, in 17% of
Midwestern–Western state constitutions, and in 10% of Northeastern state
constitutions. Property escheat was equally common in more recent and
older constitutions.
6. Married Women.—Another small minority of five states out of
thirty-seven in 1868—less than one-quarter—specifically protected the rights
of women to have property separate from their husbands. A typical state
constitutional clause protecting the property of married women at this time
provided, “The legislature shall provide for the protection of the rights of
women in acquiring and possessing property, real, personal, and mixed,
separate and apart from the husband; and shall also provide for their equal
rights in the possession of their children.”
302
Eight percent of Americans in
1868 lived in states that protected the property rights of married women in
this manner. This right could be found in 20% of Southern state
constitutions, in 17% of Midwestern–Western constitutions, and in no
Northeastern state constitutions. It was found exclusively in constitutions
ratified after 1855.
300. E.g., DEL. CONST. of 1831, art. I, § 9.
301. E.g.,
N.Y. CONST. of 1846, art. I, § 11.
302. E.g.,
KAN. CONST. of 1859, art. XV, § 6.
76 Texas Law Review [Vol. 87:7
7. Property as Supreme Right.—One state, Kentucky, declared, “The
right of property is before and higher than any constitutional
sanction . . . .”
303
It subsequently added that the right of an owner of a slave
to such slave is the same and as inviolable as other property rights.
304
Three
percent of Americans lived in Kentucky, which had a pre-1855 constitution
in 1868.
8. Suicide.—Six states out of thirty-seven—another small minority—
provided that the estates of people who committed suicide would descend or
vest as in the case of natural death. A typical such clause provided, “The
estates of those who destroy their own lives shall descend or vest as in case
of natural death . . . .”
305
Twenty-two percent of Americans in 1868 lived in
states with such clauses in their state constitutions. Suicide clauses were
found in 30% of Northeastern and 20% of Southern state constitutions in
1868. They were not found in any Midwestern–Western state constitutions.
These clauses were more common in older than in newer state constitutions;
they could be found in 28% of the pre-1855 constitutions but in only 5% of
the post-1855 constitutions.
I. Juries and Grand Juries
The federal Bill of Rights guarantees the right to criminal jury trial in
the Sixth Amendment, as does Article III, Section Two of the Constitution.
The Seventh Amendment guarantees the right to a civil jury trial in all suits
at common law for more than $20. These provisions are foundational to fed-
eral constitutional law, but they are mentioned only after the topics of:
religion; expression; guns and the military; searches and warrants; criminal
procedure; and property rights. The right to a jury trial in criminal cases was
incorporated as a matter of substantive due process in 1968 in Duncan v.
Louisiana,
306
but the Seventh Amendment right to a civil jury has never been
incorporated. The Fifth Amendment of the federal Bill of Rights forbids in-
dictment in ordinary cases except where a grand jury has voted out a true bill.
What, then, did state constitutions say in 1868 about whether there was a
fundamental right to a criminal jury trial, to a civil jury trial, or to be indicted
only with the concurrence of a grand jury?
1. Criminal Jury.—Thirty-six states out of thirty-seven in 1868—a clear
Article V, three-quarters consensus—explicitly guaranteed the right to jury
trials in all criminal prosecutions. A typical state constitutional clause of this
type provided, “In all criminal prosecutions the accused shall have a right to
303. KY. CONST. of 1850, art. XIII, § 3.
304. Id.
305. E.g., D
EL. CONST. of 1831, art. I, § 15.
306. 391 U.S. 145, 149–50 (1968).
2008] Individual Rights Under State Constitutions in 1868 77
a speedy and public trial by an impartial jury . . . .”
307
Ninety-nine percent of
all Americans in 1868 lived in states that constitutionally guaranteed the right
to criminal jury trial. Only one Midwestern–Western state—California—
failed to guarantee the right to a criminal jury trial, and its constitution was
ratified before 1855. One state of the thirty-six that protected the right to a
criminal jury trial—Vermont—also required unanimous consent of the jury
for convictions.
308
This might be relevant since modern law has come to al-
low non-unanimous jury verdicts even though they were not commonplace in
1868.
2. Civil Jury.—Thirty-six states out of thirty-seven in 1868—another
clear Article V, three-quarters consensus—guaranteed the right to jury trials
in all civil or common law cases. Eighteen of these states explicitly men-
tioned a right to civil jury trial in all civil or common law trials. Oregon’s
constitution, for instance, provided, “In all civil cases the right of trial by jury
shall remain inviolate.”
309
The other eighteen states provided more generally
for the right by protecting the right of a jury trial in the abstract without spe-
cifically singling out civil or criminal jury trials for protection. For example,
the Rhode Island constitution provided, “The right of trial by jury shall re-
main inviolate.”
310
We think these general protections of the right to jury
trial, against an English common law backdrop where civil jury trial was
available for suits at common law, probably imply that these state constitu-
tions ought to be read as protecting the right to a civil jury trial, although the
question is not free from doubt. The lone state that was clearly without a
right to civil jury trial in 1868 was the Southern state of Louisiana, and its
constitution was ratified after 1855. This is striking because Louisiana is the
only state in the Union with a tie to the civil law, rather than the common
law, tradition.
311
A key difference between these traditions is that the civil
law does not rely on jury trials.
312
Fully 98% of all Americans in 1868 lived
in jurisdictions where they had a fundamental state constitutional right to jury
trial in all civil or common law cases.
307. E.g., N.J. CONST. of 1844, art. I, § 8.
308. V
T. CONST. of 1793, ch. I, art. X (“[A] person hath a right to . . . a speedy public trial by
an impartial jury of his country; without the unanimous consent of which jury he cannot be found
guilty . . . .”).
309. O
R. CONST. of 1857, art. I, § 18.
310. R.I.
CONST. of 1842, art. I, § 15.
311. Christopher Osakwe, Louisiana Civil Law: The Cinderella of American Law, 60 T
UL. L.
REV. 1105, 1105–06 (1986).
312. See Douglas G. Smith, Structural and Functional Aspects of the Jury: Comparative
Analysis and Proposals for Reform, 48 A
LA. L. REV. 441, 461 (1997) (explaining that, after some
experimentation with jury trials, most civil law countries have abandoned the practice in favor of “a
‘mixed court’ composed of a panel having both professional and lay judges”).
78 Texas Law Review [Vol. 87:7
This is a striking finding that suggests the Supreme Court’s failure to
incorporate the Seventh Amendment,
313
when it has incorporated almost all
of the rest of the Bill of Rights, is quite odd and perhaps mistaken. It might
be suggested that this anomaly conforms with a tendency of the Supreme
Court to “exile” the Seventh Amendment from traditional constitutional law
and “relegat[e] [it] to the largely sub-constitutional inquiry of civil
procedure.”
314
Admittedly, one could argue that only eighteen states in 1868
explicitly single out civil jury trial as a fundamental right, but we think that
would probably misread the state constitutional provisions that protect the
right to a jury trial in general. We think those clauses were more likely un-
derstood as protecting the right to jury trial in civil as well as in criminal
cases. This is confirmed by examination of Noah Webster’s authoritative
1828 American Dictionary of the English Language—a dictionary that many
in 1868 might have consulted. Webster defines petty juries as usually con-
sisting “of twelve men” who “attend courts to try matters of fact in civil
causes, and to decide both the law and the fact in criminal prosecutions.”
315
The original public meaning of a clause generally protecting the right to a
jury trial would thus most likely have been understood in 1868 as applying to
civil as well as criminal juries.
3. Grand Jury.—The Fifth Amendment in the federal Bill of Rights
guarantees that, in nonmilitary cases, “[n]o person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.”
316
The right to a grand jury is thus a fundamental right un-
der federal constitutional law. Nonetheless, it is not one of the rights that the
Supreme Court has said is incorporated to apply against the states by the
Fourteenth Amendment.
317
What, then, was the status of the right to a grand
jury in state constitutional law in 1868?
It turns out that only nineteen states out of thirty-seven in 1868—a bare
majority—guaranteed the right to presentment or indictment by a grand jury
for felonies (or capital and other infamous crimes). A typical clause pro-
tecting this right provided:
313. See Curtis v. Loether, 415 U.S. 189, 192 n.6 (1974) (stating that, by 1974, the Court had
“not held that the right to jury trial in civil cases is an element of due process applicable to state
courts through the Fourteenth Amendment”). To date, the Supreme Court has not decided a case
holding otherwise.
314. Martin H. Redish & Daniel J. La Fave, Seventh Amendment Right to Jury Trial in Non-
Article III Proceedings: A Study in Dysfunctional Constitutional Theory, 4 W
M. & MARY BILL RTS.
J. 407, 408 (1995) (“[W]hen the Supreme Court is asked to enforce the jury trial right, it often
seems to abandon any grounding in governing principles of American constitutional and political
theory.”).
315.
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828).
316. U.S.
CONST. amend. V.
317. Hurtado v. California, 110 U.S. 516, 538 (1884).
2008] Individual Rights Under State Constitutions in 1868 79
No person shall be held to answer a criminal offence unless on the
presentment or indictment of a grand jury, except in cases of
impeachment, or in cases of petit larceny, assault, assault and battery,
affray, vagrancy and such other minor cases as the general assembly
shall make cognizable by justices of the peace; or arising in the Army
and Navy of the United States, or in the militia when in actual service
in time of war or public danger . . . .
318
Thus, there was no Article V consensus of three-quarters of the states, nor
was there a two-thirds majority of the states protecting the right to a grand
jury. This could be argued to weigh in favor of the non-incorporation of the
grand jury requirement.
Looking at the issue by population, it turns out that 51% of Americans
in 1868—again a bare majority—lived in states that guaranteed the right to a
grand jury indictment. Geographically, the right to a grand jury was found in
58% of the Midwestern–Western state constitutions in 1868, in 50% of
Northeastern state constitutions, and in 47% of Southern state constitutions.
It was present in 50% of the pre-1855 constitutions and 53% of the post-1855
constitutions. One additional state, North Carolina, stated that prosecutions
must be by indictment, presentment, or impeachment but did not mention
grand juries by name.
319
In addition, one state’s constitution—Indiana’s—
explicitly denied that there was a right to a grand jury in its state.
320
4. By Information.—A small minority of seven states out of thirty-seven
in 1868 protected criminal defendants from being prosecuted by information
(except in military or militia cases). This prohibits the initiation of criminal
prosecutions based solely on information—be it from the King, a
government, or a private citizen—for fear that such prosecutions could be
politically or maliciously motivated.
321
The alternative to prosecution by in-
formation is prosecution upon indictment by a grand jury. A typical clause
of this kind provided, “No person shall for any indictable offence be pro-
ceeded against criminally by information, except in cases arising in the land
and naval forces, or in the militia when in actual service in time of war or
public danger . . . .”
322
Twenty-six percent of Americans lived in states
where this protection was a part of state bill-of-rights constitutional law.
Such a right was found in 33% of Southern state constitutions in 1868 and in
20% of Northeastern state constitutions at that time. No Midwestern–
Western state had such a right. Twenty-two percent of the pre-1855 and 16%
318. E.g., ARK. CONST. of 1868, art. I, § 9.
319. N.C.
CONST. of 1868, art. I, § 12.
320. I
ND. CONST. of 1851, art. VII, § 17 (“The general assembly may modify or abolish the
grand-jury system.”).
321. See Wayne L. Morse, A Survey of the Grand Jury System, 10 O
R. L. REV. 101, 119–20
(1931) (describing the historical abuse of prosecutions by information).
322. E.g., D
EL. CONST. of 1831, art. I, § 8.
80 Texas Law Review [Vol. 87:7
of the post-1855 constitutions recognized this right. In contrast, two state
constitutions—those of Texas and of Louisiana—explicitly permitted prose-
cution by information.
323
5. Martial Law.—Nine states—a fairly large minority—protected their
civilians from being subjected to martial law in times of peace. A typical
clause in this category provided, “[N]o person except regular soldiers and
marines, and mariners in the service of this State, or militia, when in actual
service, ought, in any case, to be subject to or punishable by martial law.”
324
Seventeen percent of Americans lived in states with clauses of this kind.
Such clauses could be found in 50% of Northeastern state constitutions, in
20% of Southern constitutions, and in only 8% of Midwestern–Western state
constitutions. This right was protected in 39% of the pre-1855 constitutions
but in only 11% of the post-1855 constitutions. One of the states whose con-
stitution protected this right, Rhode Island, provided a significantly weaker
protection than the others.
325
6. Trial Within the State.—The Sixth Amendment to the federal Bill of
Rights guarantees a right to a criminal jury trial “by an impartial jury of the
State and district wherein the crime shall have been committed, which dis-
trict shall have been previously ascertained by law . . . .”
326
Eight states out
of thirty-seven in 1868 to some degree echoed this requirement of federal
law by guaranteeing the right to a trial within the state (or county) for crimi-
nal prosecutions. A typical clause of this kind stated, “[N]o person shall be
liable to be transported out of this State for any offence committed within the
same.”
327
Twenty-one percent of Americans living in 1868 lived in states
with such clauses in their state constitutions. These clauses were found in
50% of Northeastern state constitutions and in 25% of Midwestern–Western
state constitutions, but not in any Southern state constitutions in 1868. This
right was protected in 39% of the pre-1855 state constitutions but in only 5%
of the post-1855 state constitutions.
7. Impartial Judge.—Two states—a tiny minority—explicitly
guaranteed all citizens the right to be tried by impartial judges. Of course,
such a right could be argued to be inherent in the due process clauses that
323. See LA. CONST. of 1868, tit. I, art. 6 (“Prosecutions shall be by indictment or
information.”); T
EX. CONST. of 1868, art. I, § 8 (“And no person shall be holden to answer for any
criminal charge but on indictment or information, except in cases arising in the land or naval forces,
or offences against the laws regulating the militia.”).
324. E.g., M
D. CONST. of 1867, Declaration of Rights, art. 32.
325. See R.I.
CONST. of 1842, art. I, § 18 (“And the law martial shall be used and exercised in
such cases only as occasion shall necessarily require.”).
326. U.S.
CONST. amend. VI.
327. E.g., I
LL. CONST. of 1848, art. XIII, § 18.
2008] Individual Rights Under State Constitutions in 1868 81
most states already had. The Massachusetts constitution, for example,
provided for an impartial judge by saying, “It is the right of every citizen to
be tried by judges as free, impartial, and independent as the lot of humanity
will admit.”
328
Five percent of Americans lived in the two states that had
such clauses. Both of these states were in the Northeast and both had con-
stitutions ratified before 1855.
8. Jury Determines Law and Fact.—Three states—another small
minority—had clauses in their constitutions in 1868 that explicitly provided,
“In all criminal cases whatever the jury shall have the right to determine the
law and the facts.”
329
This could materially aid in facilitating jury
nullification. Seven percent of the total population lived in these three states,
and this right was found in 17% of Midwestern–Western state constitutions,
in 7% of Southern state constitutions, and in no Northeastern state
constitutions. One clause was in a pre-1855 constitution; the other two were
in post-1855 constitutions.
J. Rights Against Excessive Punishments
Following the protection of the right to a civil jury trial in the
Seventh Amendment, the Eighth Amendment turns to the subject of
protecting against excessive punishments. In particular, it forbids excessive
bail, excessive fines, and cruel and unusual punishments. One ambiguity of
the Cruel and Unusual Punishment Clause is whether it forbids all dispro-
portionate punishments or only a certain set of punishments that were
thought to be cruel and unusual 200 years ago, like drawing and quartering.
Debate has also focused on the question of whether the Cruel and Unusual
Punishment Clause forbids practices that would be condemned, as Trop v.
Dulles says, under the “evolving standards of decency that mark the progress
of a maturing society.”
330
Unsurprisingly, state constitutions did forbid at
least some excessive punishments in 1868.
1. Excessive Bail.—All thirty-seven state constitutions in 1868—every
last one—provided that excessive bail shall not be required in criminal cases.
Protection against excessive bail was almost always paired with state consti-
tutional bans on excessive fines and on cruel and unusual punishments. A
typical clause tracked the language of the federal Eighth Amendment,
stating, “Excessive bail shall not be required, excessive fines shall not be
imposed, and cruel and unusual punishments shall not be inflicted.”
331
Obvi-
ously, all Americans in all three regions of the country lived under state
328. MASS. CONST. of 1780, pt. 1, art. XXIX.
329. E.g., I
ND. CONST. of 1851, art. I, § 19.
330. 356 U.S. 86, 101 (1958).
331. E.g., I
OWA CONST. of 1857, art. I, § 17.
82 Texas Law Review [Vol. 87:7
constitutions with this rule, and the rule was found in all pre- and post-1855
state constitutions. There can be no question that there was a fundamental
right under state constitutional law to be protected from excessive bail in
1868. It can be argued that the Supreme Court signaled its willingness to in-
corporate this right against the states through the Fourteenth Amendment in
1971,
332
although it has not technically done so thus far. This finding may
have implications for the constitutionality of preventive detention in some
circumstances.
2. Excessive Fines.—Thirty-five states, or an Article V, three-quarters
consensus in 1868, provided explicitly in their state constitutions that exces-
sive fines not be imposed upon criminal defendants. A typical clause
banning excessive fines stated, “Excessive bail shall not be required, exces-
sive fines shall not be imposed, and cruel and unusual punishments shall not
be inflicted.”
333
Ninety-two percent of Americans in 1868—a huge
supermajority—lived in states with constitutions that banned excessive fines.
A ban on excessive fines was found in 100% of the Southern state
constitutions, in 92% of the Midwestern–Western state constitutions, and in
90% of the Northeastern state constitutions. Eighty-nine percent of the pre-
1855 constitutions and 100% of the post-1855 constitutions banned excessive
fines.
3. Cruel and Unusual Punishments.—The ban on cruel and unusual
punishments dates back to the English Bill of Rights of 1689,
334
the language
of which was exactly replicated in the Eighth Amendment of our federal Bill
of Rights.
335
Despite the ban’s longstanding history, modern debates rage as
to the types of punishments that should be considered cruel and unusual.
336
The use of capital punishment is often the focus of these debates, as evi-
denced by the Supreme Court’s recent seminal decision holding that a
332. See Schilb v. Kuebel, 404 U.S. 357, 366 (1971) (stating, in dicta, that “the Eighth
Amendment’s proscription of excessive bail has been assumed to have application to the States
through the Fourteenth Amendment”).
333. E.g., I
OWA CONST. of 1857, art. I, § 17.
334. An Act Declaring the Rights and Liberties of the Subject, and Setting the Succession of
the Crown (Bill of Rights), 1689, 1 W & M, c. 2 (Eng.) (“excessive Baile ought not to be required
nor excessive Fines imposed nor cruell and unusuall Punishments inflicted”).
335. See
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
336. See, e.g., Furman v. Georgia, 408 U.S. 238, 281 (1972) (Brennan, J., concurring) (offering
four principles that could potentially determine whether a particular punishment is cruel or unusual,
including whether or not the particular punishment is degrading to human dignity, whether the
punishment is “inflicted in a wholly arbitrary fashion,” whether the punishment is “clearly and
totally rejected throughout society,” and whether or not the punishment is “patently unnecessary”);
see also Gregg v. Georgia, 428 U.S. 153, 169–73 (1976) (briefly detailing the history of the
prohibition of cruel and unusual punishment and the evolution of that debate in American
jurisprudence).
2008] Individual Rights Under State Constitutions in 1868 83
commonly used type of lethal injection did not violate the Eighth
Amendment because it did not create a substantial risk of wanton and
unnecessary infliction of pain, torture, or lingering death.
337
Thirty-four states—or an Article V, three-quarters consensus—in 1868
had clauses in their state constitutions that banned cruel and unusual
punishments. Although there was some variation in language, as discussed
below, a typical such clause read, “That excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
338
Ninety-one percent of all Americans in 1868—again a huge supermajority—
lived in states with bans on cruel and unusual punishments. Such a ban was
found in 100% of Southern state constitutions, in 92% of Midwestern–
Western state constitutions, and in 80% of Northeastern state constitutions.
Eighty-three percent of the pre-1855 state constitutions had bans on cruel and
unusual punishments while 100% of the post-1855 state constitutions had
such bans. Seventeen of the thirty-four states with such bans banned cruel
and unusual punishments, tracking the language of the Eighth
Amendment.
339
Fourteen of those thirty-four states went even further than
the federal Eighth Amendment and banned cruel or unusual punishments.
340
Four states banned only cruel punishments with no reference to unusual
punishments.
341
The Eighth Amendment protection against cruel and un-
usual punishment was incorporated as a matter of substantive due process in
Robinson v. California in 1962.
342
4. Proportionality.—Only nine states out of thirty-seven in 1868—a
minority of slightly less than one-quarter of the states then in the Union—
explicitly required in their state constitutions that all penalties and punish-
ments be proportioned to the offense. This is striking because the U.S.
Supreme Court has found a proportionality principle in the Fourteenth
Amendment since its decision in Weems v. United States in 1910.
343
A typi-
cal proportionality clause in 1868 provided, “[A]ll punishments ought to be
proportioned to the offence.”
344
Only 21% of Americans in 1868—a
337. Baze v. Rees, 128 S. Ct. 1520, 1534–36 (2008).
338. E.g., M
O. CONST. of 1865, art. I, § 21.
339. V
A. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of 1776, Declaration
of Rights, § 9) (“That excessive bail ought not to be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”).
340. E.g., T
EX. CONST. of 1868, art. I, § 11 (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel nor unusual punishment inflicted.”).
341. E.g., R.I.
CONST. of 1842, art. I, § 8 (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel punishments inflicted; and all punishments ought to be proportioned to the
offence.”).
342. 370 U.S. 660, 667–68 (1962) (invalidating a California statute that criminalized drug
addiction on grounds that it inflicted cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments).
343. 217 U.S. 349 (1910).
344. E.g., R.I.
CONST. of 1842, art. I, § 8.
84 Texas Law Review [Vol. 87:7
minority of about one-fifth of the total population—lived in states with
proportionality requirements. Such requirements were fairly evenly dis-
persed across the country, with 30% of Northeastern states, 25% of
Midwestern–Western states, and 20% of Southern states including them in
their constitutions. Proportionality requirements were found in 28% of the
pre-1855 constitutions and 21% of the post-1855 constitutions. Again, these
explicit proportionality requirements are interesting to us today because they
are relevant to the debate about whether or not cruel-and-unusual-punishment
clauses implicitly require proportionality of punishment. In Weems, a federal
Eighth Amendment case, and later in Solem v. Helm,
345
a state Fourteenth
Amendment case, the Supreme Court held that they do.
346
However, signifi-
cant disagreement still exists within the Court.
347
The existence of only nine
explicit proportionality clauses in state constitutions in 1868 may be relevant
to the modern debate.
Of course, it is always possible that some states lacked
proportionality clauses because citizens thought their states’ ban on cruel and
unusual punishment already banned disproportionate punishment or that such
a ban was an inalienable natural right that, as we shall see below, some state
constitutions explicitly and textually protected.
5. Prisoners Rights.—Five states in 1868—a small minority—had
clauses with explicit prisoners-rights protections in their state constitutions.
Whether this meant prisoners rights were or were not protected by bans on
cruel and unusual punishment in 1868 is a question beyond the scope of this
Article. Although there was variation in their wording, a typical prisoners-
rights clause in 1868 provided, “That no person arrested or confined in jail
shall be treated with unnecessary rigor.”
348
Eleven percent of Americans in
1868 lived in states with constitutions that protected prisoners rights in this
fashion. Prisoners rights were protected by 17% of Midwestern–Western
state constitutions, in 13% of Southern state constitutions, and in 10% of
Northeastern state constitutions. Seventeen percent of the pre-1855 constitu-
tions and 11% of the post-1855 constitutions had protections of this kind for
prisoners rights.
345. 463 U.S. 277 (1983).
346. See Weems, 217 U.S. at 367 (“[I]t is a precept of justice that punishment for crime should
be graduated and proportioned to offense.”); Solem, 463 U.S. at 296–303 (holding that life
imprisonment without the possibility of parole for a pattern of seven nonviolent felonies violated the
Eighth Amendment).
347. Compare Rummel v. Estelle, 445 U.S. 263, 274 (1980) (holding that prescribing criminal
punishment is a legislative prerogative), with Ewing v. California, 538 U.S. 11, 30–31 (2003)
(holding that a sentence of twenty-five-years-to-life was not “grossly disproportionate” to the crime
of felony grand theft under California’s three-strikes statute), and Lockyer v. Andrade, 538 U.S. 63,
77 (2003) (reiterating the “gross disproportionality principle,” and holding that two consecutive
terms of twenty-five-years-to-life imprisonment were not grossly disproportionate to the crime of
felony theft under the same California statute).
348. E.g., T
ENN. CONST. of 1834, art. I, § 13.
2008] Individual Rights Under State Constitutions in 1868 85
6. Penal Principles.—Four states in 1868—a minority—established
various penal principles of some kind. The Indiana and Oregon constitutions
provided that their penal codes would “be founded on the principles of
reformation, and not of vindictive justice.”
349
A third state—North
Carolina—provided in its constitution, “The objects of the punishments be-
ing not only to satisfy justice, but also to reform the offender, and thus
prevent crime, murder, arson, burglary, and rape, and these only, may be
punishable with death, if the general assembly shall so enact.”
350
In contrast,
the fourth state—Vermont—called for continued visible punishments of in-
carceration of long duration in order to deter the commission of crimes and to
make sanguinary laws less necessary.
351
Eight percent of Americans in 1868
lived in states that based their penal codes on principles of reformation. Such
principles were declared constitutional in 17% of Midwestern–Western state
constitutions, in 13% of Southern state constitutions, and in 10% of
Northeastern state constitutions. Such clauses were equally common in older
and more recent constitutions.
7. Sanguinary Laws.—Three states in 1868—a minority—prohibited
sanguinary laws. A typical clause provided, “[A] multitude of sanguinary
laws is both impolitic and unjust. The true design of all punishments being
to reform, not to exterminate, mankind.”
352
These three states—Maine, New
Hampshire, and Maryland—contained 3% of the American population.
These states are in addition to the three that had reformative penal principles.
Two were in the Northeast and one was in the South. Two had constitutions
ratified before 1855, and one had a constitution ratified after 1855. One of
these state constitutional provisions—that of Maryland—was somewhat
weaker than the others in that it provided only that sanguinary laws ought to
be avoided.
353
8. Whipping.—One state—Georgia—explicitly prohibited whipping as
a punishment for crime in its state constitution in 1868.
354
Three percent of
the total population lived in Georgia at the time. Its constitution was ratified
after 1855. Whether whipping would have been viewed as cruel and unusual
349. IND. CONST. of 1851, art. I, § 18; OR. CONST. of 1857, art. I, § 15.
350. N.C.
CONST. of 1868, art. XI, § 2.
351. See V
T. CONST. of 1793, ch. II, § 37 (“To deter more effectually from the commission of
crimes, by continued visible punishments of long duration, and to make sanguinary laws less
necessary, means ought to be provided for punishing by hard labor . . . and all persons, at proper
times ought to be permitted to see them at their labor.”).
352. E.g., N.H.
CONST. of 1784, pt. I, art. XVIII.
353. M
D. CONST. of 1867, Declaration of Rights, art. 16 (“That sanguinary laws ought to be
avoided as far as it is consistent with the safety of the State . . . .”).
354. G
A. CONST. of 1868, art. I, § 22 (“Whipping, as a punishment for crime, is prohibited.”).
86 Texas Law Review [Vol. 87:7
punishment in 1868 in the three-quarters majority of states that outlawed
such punishment is a question beyond the scope of this Article.
9. Corporal Punishment.—Three additional states in 1868—a
minority—prohibited subjecting citizens to corporal punishment under some
circumstances. These states contained 7% of the population. One state—
Maine—was in the Northeast, and two states—Tennessee and South
Carolina—were in the South. Two of the constitutions were pre-1855, and
one was post-1855. South Carolina provided an outright ban,
355
while Maine
and Tennessee banned subjecting citizens to corporal punishment under
military law.
356
Again, the question whether corporal punishment would
have been viewed as cruel and unusual in 1868 in the various states is a
question beyond the scope of this Article.
10. Imprisonment for Debt.—Twenty-eight states out of thirty-seven in
1868, or an Article V, three-quarters majority, prohibited imprisonment for
debt. Alabama, for example, provided simply, “[N]o person shall be impris-
oned for debt.”
357
Some states made an explicit exception to the prohibition
in cases of fraud.
358
Seventy-four percent of the total population in 1868—or
slightly less than three-fourths of all Americans—lived in states with consti-
tutions that explicitly prohibited imprisonment for debt. The protection was
the least common in the Northeast; 100% of Midwestern–Western, 80% of
Southern, but only 40% of Northeastern state constitutions prohibited im-
prisonment for debt. The presence of a specific ban on imprisonment for
debt could be argued to imply that there was no proportionality principle in
state cruel-and-unusual-punishment clauses in 1868, or it could be argued to
suggest a consensus against one of many forms of punishment that was
disproportionate.
11. Witness Detention.—Seven states in 1868—again a minority—
prohibited the unreasonable detention of witnesses in criminal cases. A
typical such clause stated, “Excessive bail shall not be required, nor exces-
sive fines imposed, nor shall cruel and unusual punishment be inflicted, nor
355. S.C. CONST. of 1868, art. I, § 16 (“All persons shall, before conviction, be bailable by
sufficient sureties, except for capital offences, when the proof is evident or the presumption great;
and excessive bail shall not in any case be required, nor corporal punishment inflicted.”).
356. M
E. CONST. of 1819, art. I, § 14 (“No person shall be subject to corporal punishment under
military law, except such as are employed in the army or navy, or in the militia when in actual
service, in time of war or public danger.”); T
ENN. CONST. of 1834, art. I, § 25 (“That no citizen of
this State, except such as are employed in the Army of the United States, or militia in actual service,
shall be subjected to corporeal punishment under the martial law.”).
357. A
LA. CONST. of 1867, art. I, § 22.
358. E.g., S.C.
CONST. of 1868, art. I, § 20 (“No person shall be imprisoned for debt, except in
cases of fraud . . . .”).
2008] Individual Rights Under State Constitutions in 1868 87
shall witnesses be unreasonably detained.”
359
Twenty percent of Americans
lived in states in 1868 with constitutional protections of this kind. Such pro-
tections were found in 25% of Midwestern–Western state constitutions in
1868, in 20% of Southern state constitutions, and in 10% of Northeastern
state constitutions. Witness detention was prohibited in 17% of the pre-1855
constitutions and in 21% of the post-1855 constitutions.
K. State Constitutional Acknowledgment of the Existence of Unenumerated
or Natural Rights
The Ninth Amendment, in the federal Bill of Rights, explicitly says,
“The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”
360
Some have argued
that the Ninth Amendment secures natural-law unenumerated rights from
congressional intrusion,
361
while others have argued that the provision was
put in simply to avoid arguments that the federal Bill of Rights preempted the
protection of other rights such as those in state bills of rights.
362
Everyone
agrees that the Ninth Amendment is not incorporated by the Fourteenth
Amendment to apply against the states, but some believe that the Fourteenth
Amendment is itself a font of judicially enforceable unenumerated natural-
law rights,
363
while others argue that it is not.
364
This raises rather insistently
the question of whether state bills of rights in 1868 had what Professor John
Yoo has called “baby Ninth Amendments.”
365
It turns out many of them did.
The following graph shows the number of unenumerated rights guarantees in
older and newer constitutions and exposes a dramatic increase in the preva-
lence of such rights over time.
359. E.g., N.Y. CONST. of 1846, art. I, § 5 (emphasis added).
360. U.S.
CONST. amend. IX.
361. See, e.g., D
ANIEL A. FARBER, RETAINED BY THE PEOPLE: THE “SILENT” NINTH
AMENDMENT AND THE CONSTITUTIONAL RIGHTS AMERICANS DON’T KNOW THEY HAVE 197
(2007) (asserting that the Ninth Amendment was established to preserve federal unenumerated
rights).
362. See Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 T
EXAS L. REV. 597,
600–01 (2005) (arguing that despite its reference to “retained rights,” the primary intent of the Ninth
Amendment was to protect the states from overly broad interpretations of federal power). For a
modern commentary about Ninth Amendment protection of fundamental rights, see generally
F
ARBER, supra note 361.
363. See F
ARBER, supra note 361, at 69 (arguing that the drafters of the Fourteenth Amendment
used vague language because they wanted it to protect “fundamental rights,” and quoting John Hart
Ely’s interpretation of the Privileges or Immunities Clause as “‘a delegation to future constitutional
decision-makers to protect certain rights that the document neither lists, at least not exhaustively,
nor even in any specific way gives direction for finding’”).
364. See Lash, supra note 362, at 601, 651–53 (describing how courts from Reconstruction to
the New Deal applied the Madison rule of Ninth Amendment construction to prohibit the use of the
Fourteenth Amendment as a tool for the enumeration of any rights that deny or disparage the
retained rights of the people).
365. See John Choo Yoo, Our Declaratory Ninth Amendment, 42 E
MORY L.J. 967, 968–69
(1993) (observing that state constitutions, in the late eighteenth and early nineteenth centuries,
contained Ninth Amendment analogs).
88 Texas Law Review [Vol. 87:7
1. State Constitutional Law Recognition of Natural and Inalienable
Rights.—Twenty-seven out of thirty-seven state constitutions in 1868—or
two-thirds of the states but not an Article V consensus—declared as a matter
of positive state constitutional law the existence of natural, inalienable,
inviolable, or inherent rights. A typical such state constitutional provision
read, “All men are by nature free and independent, and have certain inalien-
able rights, among which are those of enjoying and defending life and
liberty, acquiring, possessing and protecting property: and pursuing and ob-
taining safety and happiness.”
366
Seventy-one percent of all Americans in
1868 lived in states whose positive state constitutional law acknowledged the
existence of these kinds of natural, inalienable, inviolable, or inherent indi-
vidual rights, which, as we have seen, could well have included gun rights.
Clauses acknowledging the existence of these rights were most popular in the
Northeast, where 90% of state constitutions had them. This was followed by
75% in the Midwest–West and 60% in the South. Mention of natural and
inalienable rights was more common in older constitutions than in newer
ones. Such references were found in 83% of the pre-1855 constitutions but
in 63% of the post-1855 constitutions. One state—Kentucky—stated that the
right to own slaves was a property right and therefore also was inviolable.
367
It is not clear from reading the text of these state constitutional bill-of-rights
provisions whether they were meant to be judicially enforceable or not, and if
they were to be so enforced, how the unenumerated rights in question would
be identified.
These references to unenumerated rights, and particularly to natural
and inalienable rights, deserve special mention because their presence in state
constitutions in 1868 could be read to indicate a belief that certain rights—
including, perhaps, the right to defend life, liberty, and property—exist in
and of themselves as preexisting entitlements. In other words, it suggests
that our constitutions and bills of rights do not create rights but simply
declare or recognize their existence. Although modern-day positivists may
be tempted to dismiss this view as antiquated, it is arguably in some respects
echoed in present-day substantive-due-process decisions. Our nation is
founded on the belief that natural and inalienable rights exist, but we do not
yet know for certain, or have consensus about, what they all are, nor is there
any indication in the state constitutions from 1868 that such rights are judi-
cially discoverable or enforceable. Certainly the right to defend life, liberty,
and property is different from what the modern Supreme Court has protected
under the rubric of a right to privacy.
2. Fundamental Principles.—Seven states out of thirty-seven in 1868—
a minority—vaguely mentioned the existence of “fundamental principles”
366. E.g., CAL. CONST. of 1849, art. I, § 1.
367. K
Y. CONST. of 1850, art. XIII, § 3.
2008] Individual Rights Under State Constitutions in 1868 89
and emphasized the importance of a frequent recurrence to them in order to
preserve the blessings of liberty. A typical such clause provided, “The
blessings of a free government can only be maintained by a firm adherence to
justice, moderation, temperance, frugality and virtue, and by frequent recur-
rence to fundamental principles.”
368
These clauses seem to us to be
somewhat analogous to the state constitutional clauses just discussed that
acknowledge the existence of natural and inalienable rights. These clauses
did not, however, explicitly recognize man’s inherent freedom in the state of
nature. And, again, there is no reason to think these clauses were judicially
enforceable. Twenty percent of the American people in 1868 lived in states
with these clauses in their state constitutions. Such clauses were most com-
mon in the Midwest–West, where 25% of the states had them, followed by
20% in the Northeast, and 13% in the South. Fundamental-principles clauses
were slightly more common in older constitutions; they were found in 22%
of the pre-1855 constitutions and in 16% of the post-1855 constitutions.
Some states announced a legal right of the people to demand constant regard
of these principles from their public officers.
369
None of these grandiose and
enigmatic clauses described the fundamental principles they referred to with
any specificity.
3. Ninth Amendment Analogs.—Eighteen out of thirty-seven state
constitutions in 1868—slightly fewer than one-half—contained clauses
analogous to the Ninth Amendment of the federal Constitution. These baby
Ninth Amendments declared that the enumeration of rights in state constitu-
tions should not be construed to impair or deny other rights retained by the
people.
370
Thirty-three percent of Americans lived in states with Ninth
Amendment analogs. The prevalence of baby Ninth Amendments varied
greatly by region—they were found in 67% of Midwestern–Western states,
20% of Northeastern state constitutions, and 13% of Southern state
constitutions. Ninth Amendment analogs were also more common in recent
constitutions, as they were present in 28% of the pre-1855 and 68% of the
post-1855 constitutions.
All eighteen Ninth Amendment analogs are virtually identical to each
other and to the Ninth Amendment of the federal Constitution, stating, “The
enumeration of the foregoing rights shall not be construed to impair or deny
others retained by the people.”
371
Once again, scholars and judges disagree
368. E.g., WIS. CONST. of 1848, art. I, § 22.
369. E.g., M
ASS. CONST. of 1780, pt. 1, art. XVIII (“[T]he fundamental principles of the
constitution . . . are absolutely necessary to preserve the advantages of liberty, and to maintain a free
government. The people . . . have a right to require of their lawgivers and magistrates an exact and
constant observance of them . . . .”).
370. See, e.g., M
E. CONST. of 1819, art. I, § 24 (“The enumeration of certain rights shall not
impair nor deny others retained by the people.”).
371. E.g., R.I.
CONST. of 1842, art. I, § 23.
90 Texas Law Review [Vol. 87:7
as to whether the principal thrust of the federal Ninth Amendment is as an
anti-preemption federalism provision or as a protection for unenumerated,
natural-law individual rights.
372
As Professor Akhil Amar has argued, these
baby Ninth Amendments present in state constitutions in 1868 at the time of
the ratification of the Fourteenth Amendment may intimate a transformation
of the Ninth Amendment from a federalism clause in 1791 to more of “a
free-floating affirmation of unenumerated rights” in 1868.
373
However, this
theory of transformation presumes that the states with baby Ninth
Amendments did not adopt baby Tenth Amendments as well, and that there
were no federalism provisions in state constitutions in 1868. As we shall see,
three states did adopt Tenth Amendment analogs, and that may muddy the
significance of the existence of baby Ninth Amendments.
4. Tenth Amendment Analogs.—Three states in 1868—a tiny
minority—contained clauses in their state constitutions analogous to the
Tenth Amendment of the federal Constitution. These clauses specifically
reiterated that the powers neither delegated to the United States nor prohib-
ited to the States by the federal Constitution are reserved to the States
respectively or to the people themselves.
374
Seven percent of the American
people in 1868 lived in states with Tenth Amendment analogs in their state
constitutions. The three states with such analogs constituted 20% of the
Northeastern states and 7% of the Southern states. There were no Tenth
Amendment analogs in Midwestern–Western constitutions. Tenth
Amendment analogs appeared in 11% of the pre-1855 constitutions
compared with 5% of the post-1855 constitutions. The adoption of Tenth
Amendment analogs in state constitutions is perhaps somewhat surprising
because they purport to limit federal power as a matter of state positive law.
They are probably best understood as declaring the relationship between the
states and the federal government just as the baby Ninth Amendments may
have declared the existence of individual rights.
372. See, e.g., Lash, supra note 362, at 715 (chronicling the various interpretations of the Ninth
Amendment by the Supreme Court).
373. A
MAR, supra note 44, at 280.
374. E.g., M
D. CONST. of 1867, Declaration of Rights, art. 3 (“The powers not delegated to the
United States by the Constitution thereof, nor prohibited by it to the States, are reserved to the
States respectively, or to the people thereof.”).
2008] Individual Rights Under State Constitutions in 1868 91
Figure 10: Time Trends in Unenumerated Rights
5. Is the Existence of Unenumerated Natural-Law Rights Itself Deeply
Rooted in History and Tradition?—We have reported here how many of the
thirty-seven state constitutions in 1868 either protected natural and inalien-
able rights, protected fundamental principles, or had Ninth Amendment
analogs. It turns out that in 1868 twenty-nine state constitutions—78%,
greater than an Article V consensus—protected unenumerated rights in one
of these three guises as a matter of positive state constitutional law. If one
excludes states whose constitutions protect fundamental principles (a vaguer
term) and looks only at state constitutions recognizing either natural and in-
alienable rights or having Ninth Amendment analogs, the number of states
with such protections remains at twenty-nine—an astounding Article V
federal-constitutional consensus. This is a very high percentage of the total
number of states in 1868 and therefore suggests that, with regard to questions
about what rights are so deeply rooted as to be fundamental, the concept of
natural, inalienable, and unenumerated rights may itself be deeply rooted in
history and tradition. This is an ironic outcome. If the whole point of look-
ing at what rights are deeply rooted in history and tradition is to give content
to the unenumerated rights protected by the Fourteenth Amendment, then the
conclusion of an exhaustive study of history and tradition such as this one
suggests that the framers of the Fourteenth Amendment may have believed in
natural law could be said to call positive-law historical inquiries like our own
into question. Nonetheless, it bears repeating that there is no indication in
the baby Ninth Amendments or other similar provisions we found that they
were meant to authorize judges to invent new rights and apply them in
0
5
10
15
20
25
30
35
9th Amendment Analog Privileges & Immunities Natural & Inalienable All Unenumerated
Type of Right
Number of States
Before 1855
After 1855
92 Texas Law Review [Vol. 87:7
judicial review against legislatures. In fact, to the contrary, the Fourteenth
Amendment was written to overturn the judicially invented right to bring
slaves into federal territories.
375
It seems doubtful the framers of that
Amendment would have meant for it to become a font of new, additional,
judicially invented unenumerated rights. But then again, maybe they just
goofed when they drafted it, and we, fellow citizens, are stuck with or
blessed with that result, depending on one’s point of view.
***
We have now come to the end of the rights secured by the federal Bill
of Rights or by Article I, Sections Nine or Ten of the original constitution.
There are, however, a number of additional rights we found in state constitu-
tions in 1868 that are of great interest to federal constitutional case law. We
will proceed to discuss those additional rights in no particular order below.
L. Right to Travel
The U.S. Supreme Court has protected a right to travel in Shapiro v.
Thompson
376
and arguably to some degree in Saenz v. Roe.
377
It is argued
that a right to travel is implicit in the structure of the federal Constitution.
378
Even The Slaughterhouse Cases, while gutting the Fourteenth Amendment,
recognized that there must be an implicit individual right of citizens to travel
to Washington, the seat of government.
379
Interestingly, a number of state
constitutions recognize a right to immigrate into a state or to emigrate from
it, which means they to some degree acknowledge the existence of a right to
travel.
1. Immigration.—Eleven states in 1868—a minority—specifically
protected the right to immigrate into their state as a matter of positive
constitutional law by guaranteeing out-of-staters who came to reside in their
state enjoyment of rights equal to those of native-born citizens. A typical
such clause provided, “Foreigners who are or may hereafter become bona-
375. See Michael W. McConnell, Remarks at the Panel on Originalism and Unenumerated
Constitutional Rights, in O
RIGINALISM: A QUARTER CENTURY OF DEBATE 113, 148 (Steven G.
Calabresi ed., 2007) (theorizing that the Fourteenth Amendment envisioned Congress and not the
federal courts as its enforcement agent because “[w]hen the framers of the Fourteenth Amendment
thought of judges, they were thinking of Roger B. Taney and Dred Scott v. Sanford”).
376. See 394 U.S. 618, 629 (1969) (holding one-year residency requirements for state aid to be
unconstitutional restrictions on travel).
377. See 526 U.S. 489, 503 (1999) (affirming a preliminary injunction against a California
statute providing different levels of aid to state citizens who had not lived in California for one
year).
378. Id. at 498 (“The word ‘travel’ is not found in the text of the Constitution. Yet the
‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.”
(quoting United States v. Guest, 383 U.S. 745, 757 (1966))); Shapiro, 394 U.S. at 629 (“[T]he
nature of our Federal Union and our constitutional concepts of personal liberty unite to require that
all citizens be free to travel . . . .”).
379. The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).
2008] Individual Rights Under State Constitutions in 1868 93
fide residents of this State shall enjoy the same rights in respect to the
possession, enjoyment, and inheritance of property as native-born
citizens.”
380
Fifteen percent of Americans in 1868 lived in states that pro-
tected the rights of out-of-staters in this way. These clauses were most
popular in the Midwest–West, where they were found in 67% of state
constitutions. Such constitutional clauses were present in 13% of Southern
state constitutions and 10% of Northeastern state constitutions. Immigration
protections were found in 22% of the pre-1855 constitutions and 37% of the
post-1855 constitutions. These clauses are technically superfluous because
the Privileges and Immunities Clause of Article IV of the federal
Constitution already guaranteed these rights to out-of-staters in a state as a
matter of federal constitutional law.
381
2. Emigration.—Six states out of thirty-seven in 1868—a minority—
explicitly protected the right of their citizens to emigrate. A typical clause
provided, “[E]migration from the State shall not be prohibited.”
382
This type
of clause is more striking than the immigration clauses. It clearly acknowl-
edges and gives life to an important fundamental liberty—the liberty to flee a
jurisdiction that is becoming tyrannical. Twenty-one percent of Americans
in 1868 lived in states whose constitutions guaranteed the right to emigrate.
This right was slightly more evenly distributed than the right to immigrate.
We found it in 20% of Northeastern, 17% of Midwestern–Western, and 13%
of Southern state constitutions in 1868. It was twice as common before 1855
than after 1855.
3. Not Forfeit Residence.—Three states in 1868—a small minority—
protected the property of citizens who temporarily left the state. A typical
such clause provided, “Temporary absence from the State shall not forfeit a
residence once obtained.”
383
Nine percent of Americans had this protection
as a matter of state constitutional law in 1868. The protection was found
only in 13% of Southern and in 8% of Midwestern–Western state
constitutions. It was twice as common after 1855 than before 1855.
In sum, there are some hints at protection of a right to travel in positive
state constitutional law in 1868, which is interesting to the extent that the
federal Constitution can be argued to imply such a right.
380. E.g., NEV. CONST. of 1864, art. I, § 16.
381. U.S.
CONST. art. IV, § 2, cl. 1 (“The citizens of each State shall be entitled to all Privileges
and Immunities of Citizens of the several States.”).
382. E.g., P
A. CONST. of 1838, art. IX, § 25.
383. E.g., S.C.
CONST. of 1868, art. I, § 35.
94 Texas Law Review [Vol. 87:7
M. Equality Rights
The federal Constitution guarantees equality rights most famously in
Section One of the Fourteenth Amendment, which forbids the making of dis-
criminatory laws and the unequal application of neutral laws on state statute
books.
384
This equality guarantee of the Fourteenth Amendment was reverse-
incorporated into the Fifth Amendment’s Due Process Clause in Bolling v.
Sharpe.
385
In Frontiero v. Richardson,
386
the federal guarantee of equality
rights against the national government was expanded to apply to women as
well as racial and ethnic minorities.
387
It may have been expanded in Romer
v. Evans
388
to apply to gays and lesbians as well.
389
Finally, the original fed-
eral Constitution guaranteed a form of equality by forbidding titles of
nobility and therefore by forbidding feudalism.
390
Feudalism, like a system
of racial-caste apartheid, violates the notion that all citizens are born equal
and must always have equal civil and political rights. What did state consti-
tutional law have to say about this in 1868—a mere three years after the
conclusion of the Civil War?
1. Equal Protection of the Laws Clauses.—Although use of the Equal
Protection Clause got off to a slow start,
391
the Court at least since Brown v.
Board of Education
392
has used it as a primary tool for protecting fundamen-
tal rights.
393
The basic inquiry in equal-protection cases is whether the
government’s classifications or restrictions are justified by a sufficient
384. U.S. CONST. amend. XIV, § 1.
385. 347 U.S. 497, 499 (1954).
386. 411 U.S. 677 (1973).
387. Id. at 682.
388. 517 U.S. 620 (1996).
389. Id. at 635; see also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J.,
concurring) (acknowledging that while the Texas law banning homosexual sodomy was
unconstitutional under the Equal Protection Clause, other statutes distinguishing between
homosexuals and heterosexuals could pass rational basis review).
390. U.S.
CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United
States . . . .”).
391. Until the mid-1950s, the Supreme Court rarely struck down laws under the Equal
Protection Clause, leading Justice Holmes to refer to it as “the usual last resort of constitutional
arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927); see also Joseph Tussman & Jacobus
tenBroek, The Equal Protection of the Laws, 37 C
AL. L. REV. 341, 341–42 (1949) (discussing the
Equal Protection Clause and its growing importance following its initial failure to attain the scope
that its framers intended).
392. 347 U.S. 483 (1954).
393. See, e.g., Romer v. Evans, 517 U.S. 620, 635 (1996) (holding a Colorado amendment that
repealed various city ordinances prohibiting discrimination on the basis of sexual orientation to be
“a classification of [homosexual] persons undertaken for its own sake, something the Equal
Protection Clause does not permit”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The Fourteenth
Amendment requires that the freedom of choice to marry not be restricted by invidious racial
discriminations.”); Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election
are to have an equal vote . . . . This is required by the Equal Protection Clause of the Fourteenth
Amendment.”).
2008] Individual Rights Under State Constitutions in 1868 95
purpose, and differing levels of scrutiny are applied depending on the type of
discrimination involved.
394
Of particular interest here is the way in which
courts use equal-protection clauses to protect fundamental rights (as opposed
to discrimination based on specific characteristics).
395
Nineteen states out of thirty-seven in 1868—a bare majority—
specifically guaranteed “equality” of some kind or equal protection of the
laws in their state constitutions. The nineteen clauses we found protecting
equal protection varied considerably in their wording. For example, the
Connecticut constitution provided simply, “[A]ll men, when they form a so-
cial compact, are equal in rights; and that no man, or set of men, are entitled
to exclusive public emoluments or privileges from the community.”
396
South
Carolina’s constitution contained slightly different language: “No title of no-
bility or hereditary emolument shall ever be granted in this State.
Distinction, on account of race or color, in any case whatever, shall be
prohibited, and all classes of citizens shall enjoy, equally, all common,
public, legal, and political privileges.”
397
This clause is also a privileges-or-
immunities clause, but we count it here because it uses the word “equally.”
Forty-seven percent of Americans in 1868 lived in states that constitu-
tionally guaranteed equality of some kind, or equal protection. Equal-
protection clauses were by far most common in the South, where 87% of
states had them. In contrast, they were found in 33% of Midwestern–
Western state constitutions and 30% of Northeastern state constitutions.
Equal-protection clauses were also a relatively more modern right in 1868;
they could be found in only 33% of the pre-1855 constitutions but in 74% of
the post-1855 constitutions. The reason for the greater prevalence of equal-
protection clauses in Southern state constitutions and in the more recent state
constitutions in 1868 is that the Southern states were forced to adopt such
provisions in their state constitutions as a condition of their being readmitted
to the Union.
398
It is ironic therefore to find the former slave states at the
vanguard of protecting equality rights in 1868.
In addition to the nineteen states with explicit equal-protection clauses,
the Mississippi state constitution in 1868 contained three partial equal-
protection clauses. These clauses provided for equality in state funding of
charitable and public institutions;
399
in the possession, enjoyment, or descent
394. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4, 153–54 (1938).
395. One of the first cases to use the Equal Protection Clause in this way was Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942) (striking down an Oklahoma sterilization law under strict
scrutiny because it implicated the “fundamental” right to procreate, and unjustifiably discriminated
between people who “committed intrinsically the same quality of offense”).
396. C
ONN. CONST. of 1818, art. I, § 1.
397. S.C.
CONST. of 1868, art. I, § 39.
398. See Reconstruction Act, § 5, 14 Stat. 428, 429 (1867) (requiring both that Southern states
ratify the Fourteenth Amendment and that they form a constitution of government “in conformity
with the Constitution of the United States in all respects”).
399. M
ISS. CONST. of 1868, art. I, § 21.
96 Texas Law Review [Vol. 87:7
of property;
400
and in the right to travel upon public conveyances.
401
This
latter provision is striking in light of the Supreme Court’s upholding of seg-
regation in Plessy v. Ferguson
402
with respect to the public conveyance of
railroad cars.
403
The Rhode Island state constitution in 1868 contained a
somewhat weaker equal-protection clause that called for the “burdens of the
state . . . to be fairly distributed among its citizens.”
404
2. Privileges and Immunities Clauses.—To some, the Bill of Rights
seems the most obvious enumeration of the privileges and immunities of citi-
zenship in the United States.
405
Of course, this argument was famously
foreclosed in The Slaughterhouse Cases
406
and has not since been revisited
by the Supreme Court.
407
In a seminal law review article in 1992, Professor
John Harrison, building on the arguments of Professor David Currie, showed
how the Privileges or Immunities Clause of the Fourteenth Amendment
could have originally been meant to be the main equality guarantee of that
Amendment.
408
Professor Harrison noted that the Privileges or Immunities
Clause said no state could “make” a law that “abridged” the rights of its citi-
zens by discriminating against them.
409
The Black Codes were unconstitu-
tional because they gave an abridged or lesser set of rights to freed African-
Americans than were given to white Americans.
410
In Harrison’s view, the
Privileges or Immunities Clause dealt with equality in the making of laws
400. Id. § 22.
401. Id. § 24.
402. 163 U.S. 537 (1896).
403. Id. at 548.
404. R.I.
CONST. of 1842, art. I, § 2.
405. See Duncan v. Louisiana, 391 U.S. 145, 166 (1968) (Black, J., concurring) (“What more
precious ‘privilege’ of American citizenship could there be than that privilege to claim the
protection of our great Bill of Rights?”); see also E
RWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 473–74 (2d ed. 2002) (“[A] strong argument can be made that the
privileges or immunities clause should be interpreted as applying the Bill of Rights to the states.
The claim would be that the provisions of the Bill of Rights are the basic ‘privileges’ and
‘immunities’ possessed by all citizens.”).
406. See 83 U.S. (16 Wall.) 36, 78–79 (1873) (declaring that the Court was excused from
enumerating the privileges and immunities protected by the Fourteenth Amendment).
407. The Slaughterhouse Cases narrowly interpreted the Fourteenth Amendment in its entirety,
but the Privileges or Immunities Clause is the only restrictive interpretation that has not been
subsequently overruled. C
HEMERINSKY, supra note 405, at 474.
408. See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Y
ALE L.J.
1385, 1451–54 (1992) (arguing that an equality-based reading of the Privileges or Immunities
Clause and a more limited view of the Equal Protection Clause would ensure equal rights
effectively and as the Fourteenth Amendment originally intended); see also D
AVID P. CURRIE, THE
CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789–1888, at 344–51
(1985) (questioning Justice Miller’s construction of the Privileges or Immunities Clause in The
Slaughterhouse Cases, which severely constricted the Privileges or Immunities Clause, and
suggesting that a construction mandating that nonwhites be provided with the same rights as whites
more closely aligns with the drafters’ intent).
409. Harrison, supra note 408, at 1422.
410. Id.
2008] Individual Rights Under State Constitutions in 1868 97
while the Equal Protection Clause guaranteed equal enforcement (or
protection) of those laws already on the books.
411
If Harrison is right, we
should expect to see some equality-protecting privileges-or-immunities
clauses in state constitutions in 1868.
It turns out that thirteen states out of thirty-seven in 1868—a minority—
explicitly prohibited either the deprivation or the unequal provision of privi-
leges and immunities. Although the wording differed somewhat by state, a
typical such clause provided, “No law shall be passed granting to any citizen
or class of citizens privileges or immunities which, upon the same terms,
shall not equally belong to all citizens.”
412
Thirty-four percent of all
Americans in 1868 lived in states with such equal-protection provisions.
These clauses could be found in 53% of Southern state constitutions in 1868,
in 25% of Midwestern–Western state constitutions, and in 20% of
Northeastern state constitutions. This right was somewhat less common in
pre-1855 constitutions, where it appeared 28% of the time, while it appeared
in 42% of the post-1855 constitutions. The significance of these thirteen
state constitutional clauses using privileges-or-immunities language as equal-
protection language is that it may provide some support to Harrison’s argu-
ment that the federal Fourteenth Amendment Privileges or Immunities
Clause is only an antidiscrimination clause and not a font of unenumerated
individual rights, whether deeply rooted in history and tradition or not.
Professor Calabresi has previously disagreed with Harrison, arguing that the
Clause is both an antidiscrimination clause and a protection for individual
rights, and he stands by that view.
413
3. Feudalism and Allodium.—We saw that the original federal
Constitution protected equality rights by outlawing feudalism and titles of
nobility. This theme was very evident in state constitutional law in 1868 as
well, even though feudalism was by then ancient history. Twenty-eight out
of thirty-seven states—or an Article V, three-quarters consensus—had
clauses in their state constitutions that explicitly prohibited feudalism. A
typical such clause provided:
[N]o title of nobility, or hereditary distinction, privilege, honor, or
emolument, shall ever be granted or conferred in this State; that no
property qualification shall be necessary to the election to, or holding
of any office in this State, and that no office shall be created, the
411. Id. at 1448–50.
412. E.g., O
R. CONST. of 1857, art. I, § 21.
413. Calabresi, supra note 241, at 1535 (rejecting Harrison’s conclusion that the Privileges or
Immunities Clause is a ban on discrimination, but not a protection of individual rights); Calabresi,
supra note 34, at 1109–10 (supporting the position that the Privileges or Immunities Clause protects
fundamental rights from abridgement).
98 Texas Law Review [Vol. 87:7
appointment to which shall be for a longer time than during good
behavior.
414
Note the ban on any hereditary distinctions. Does this forbid a hereditary
right of the descendants of slaves to privileged treatment to atone for the sin
committed against their ancestors? Eighty-seven percent of Americans in
1868—a huge supermajority—lived in states that banned feudalism in this
way. Feudalism clauses were found in 87% of Southern state constitutions,
in 75% of Midwestern–Western state constitutions, and in 70% of
Northeastern state constitutions. Such clauses were found in 72% of the pre-
1855 constitutions and in 84% of the post-1855 constitutions. Some states
banned feudalism by also declaring all lands to be allodial,
415
while others
banned it as well, as we shall see below, by prohibiting titles of nobility.
416
The Article V, three-quarters consensus of the states in 1868 that
feudalism was an unconstitutional caste system or class-based system of laws
is arguably of interest with regard to modern equal protection law. We have
always known that the framers of the Fourteenth Amendment viewed the
Black Codes as paradigmatic systems of class-based law that they wished to
render unconstitutional.
417
It looks as if feudalism was pretty much viewed
the same way in 1868. There is no direct evidence on this next point, but it
seems highly likely that if one had asked the framers of the Fourteenth
Amendment if the Hindu caste system—with its divisions of the population
into Brahmins and untouchables—was unconstitutional, they would almost
certainly have said yes. The Hindu caste system, like feudalism, and like the
Black Codes, was an effort to create a class-based social system. These ob-
servations are arguably of relevance to modern debates about whether laws
that distinguish on the basis of sex create a class-based social system as well,
even if the framers of the Fourteenth Amendment did not appreciate that fact.
4. Nobility.—As part of the prohibition on feudalism, twenty states out
of thirty-seven in 1868—a majority—specifically prohibited titles of nobility
or hereditary emoluments, privileges, and honors. This category is a subset
of feudalism. A typical clause provided, “No title of nobility or hereditary
emolument shall ever be granted in this State.”
418
Fifty-nine percent of the
population in 1868 lived in states that forbade titles of nobility. Such clauses
were most common in the Northeast and the South, and were found in 60%
and 67% of the state constitutions in those regions, respectively. They were
414. E.g., ALA. CONST. of 1867, art. I, § 32.
415. E.g., N.Y.
CONST. of 1846, art. I, § 13 (“All lands within this State are declared to be
allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in
the owners, according to the nature of their respective estates.”).
416. See infra section III(M)(4).
417. See, e.g., C
HESTER JAMES ANTIEAU, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH
AMENDMENT 401–02 (1997) (explaining that the Fourteenth Amendment was calculated to abolish
state legislation that was hostile to particular groups of people, primarily African-Americans).
418. E.g., S.C.
CONST. of 1868, art. I, § 39.
2008] Individual Rights Under State Constitutions in 1868 99
found in 33% of Midwestern–Western state constitutions in 1868. Titles-of-
nobility clauses were fairly evenly distributed between older and more recent
constitutions.
5. Prohibit Slavery.—The Thirteenth Amendment to the federal
Constitution, adopted in 1865—three years before the adoption of the
Fourteenth Amendment—specifically protected equality by banning slavery.
It is therefore not surprising that twenty-eight out of thirty-seven states in
1868—or an Article V consensus—banned slavery. Sixty-five percent of
Americans in 1868 lived in states that banned slavery in their state
constitutions. A typical clause provided, “Neither slavery, nor involuntary
servitude, unless for the punishment of crimes, shall ever be tolerated in this
State.”
419
Slavery bans varied widely by region and were found in 100% of
Midwestern–Western state constitutions, in 93% of Southern state
constitutions, but in only 20% of Northeastern state constitutions. Bans on
slavery were new in 1868. We found them in only 50% of the pre-1855 con-
stitutions but in 100% of the post-1855 constitutions. West Virginia,
included in the post-1855 count, had a somewhat weaker ban than the other
states because it provided a grace period for keeping slaves.
420
By contrast,
Kentucky’s constitution contained three separate clauses protecting
slavery.
421
6. General Laws.—Seven states—a minority—contained some
language in their state constitutions mandating generality in the laws,
uniformity in the operation of the law, or prohibition of laws of a private,
special, or local character. These provisions could be read to ban special-
interest legislation. Although there was some variation, a typical such clause
provided, “All laws of a general nature shall have a uniform operation.”
422
This wording, of course, applies only to the operation and not to the making
of the laws. Sixteen percent of Americans lived in states with such clauses in
their constitutions in 1868. Such clauses were found in 33% of Midwestern–
419. E.g., CAL. CONST. of 1849, art. I, § 18.
420. W.
VA. CONST. of 1861, art. XI, § 7. West Virginia’s constitution provided significant
detail on how long the grace period would last for slaves of varying ages:
The children of slaves born within the limits of this State after the fourth day of July,
eighteen hundred and sixty-three, shall be free; and all slaves within the said State who
shall, at the time aforesaid, be under the age of ten years shall be free when they arrive
at the age of twenty-one years; and all slaves over ten and under twenty-one years shall
be free when they arrive at the age of twenty-five years; and no slave shall be permitted
to come into the State for permanent residence therein.
Id.
421. See K
Y. CONST. of 1850, art. X, §§ 1–3 (restricting the legislature’s ability to emancipate
slaves without compensating owners; criminalizing immigration to and residence within the state by
free blacks; and removing the requirement for a grand jury in felony prosecutions of slaves).
422. E.g., F
LA. CONST. of 1868, art. I, § 12.
100 Texas Law Review [Vol. 87:7
Western state constitutions, 13% of Southern state constitutions, and 10% of
Northeastern state constitutions. They were present in 17% of the pre-1855
and 21% of the post-1855 constitutions.
N. State Constitutional Prohibitions of Certain Named Vices
A constant theme in the modern U.S. Supreme Court’s substantive-
due-process case law from Griswold v. Connecticut,
423
to Roe v. Wade,
424
to
the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v.
Casey,
425
to Lawrence v. Texas is that the unenumerated rights protected by
the Fourteenth Amendment include, at a minimum, a right of sexual auton-
omy or bodily integrity
426
and, at a maximum, what Justice Harry Blackmun
in his dissent in Bowers v. Hardwick called “the right to be let alone.”
427
Stated most broadly, this right could constitutionalize John Stuart Mill’s
harm principle—a principle that states that the government ought only to
legislate to protect individuals from directly, physically harming one another
without consent.
428
Laws to protect individuals from harming themselves
are, under this view, none of the government’s business.
429
Some have read
Justice Kennedy’s opinion in Lawrence v. Texas as constitutionalizing this
view,
430
although Professor Calabresi has published an article reading that
423. 381 U.S. 479 (1965).
424. 410 U.S. 113 (1973).
425. 505 U.S. 833 (1992).
426. See, e.g., Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“Liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and certain intimate conduct.”); Casey,
505 U.S. at 851. The Casey Court wrote:
These matters, involving the most intimate and personal choices a person may make in
a lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of liberty is the right to define
one’s own concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood
were they formed under compulsion of the State.
Id.
427. 478 U.S. 186, 199 (Blackmun, J., dissenting) (quoting Olmstead v. United States, 277 U.S.
438, 478 (1928) (Brandeis, J., dissenting)). The phrase “the right to be let alone” was coined by
Justice Brandeis and Samuel Warren in their seminal article, The Right to Privacy. Samuel D.
Warren & Louis D. Brandeis, The Right to Privacy, 4 H
ARV. L. REV. 193, 193 (1890).
428. See J
OHN STUART MILL, ON LIBERTY 68 (Gertrude Himmelfarb ed., Penguin Books 1984)
(1859) (“[T]he only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.”).
429. Id. at 68–69 (“The only part of the conduct of anyone for which he is amenable to society
is that which concerns others. In the part which merely concerns himself, his independence is, of
right, absolute.”).
430. See, e.g., Keith Burgess-Jackson, Our Millian Constitution: The Supreme Court’s
Repudiation of Immorality as a Ground of Criminal Punishment, 18 N
OTRE DAME J.L. ETHICS &
PUB. POL’Y 407, 414 (2004) (comparing Justice Kennedy’s “general rule” that a state should not
attempt to define the meaning of a relationship or set its boundaries absent injury to a person or
abuse of a legally protected institution with Mill’s harm principle).
2008] Individual Rights Under State Constitutions in 1868 101
opinion more narrowly.
431
It is possible that all Lawrence creates is a limited
realm of adult consensual sexual freedom where money has not been
exchanged.
432
What did state constitutions in 1868 say about the protection
of a right to engage in conduct beyond the sexual realm that violates Mill’s
harm principle—so-called victimless crimes? There is nothing one way or
the other about sexual matters, but there are a few state constitutional provi-
sions that explicitly contemplate a state role in banning at least some
nonsexual victimless crimes.
1. Lotteries.—Twenty-three states out of thirty-seven in 1868—a
majority—specifically prohibited the authorization or sale of lottery tickets in
their state constitutions. A typical such clause provided, “The legislature
shall never authorize any lottery, or the sale of lottery tickets.”
433
Since gam-
bling is not an activity where one individual directly harms another without
the other’s consent, this recognition of the power of the states to regulate
gambling is a recognition of the power to prevent people from engaging in
conduct that is harmful to themselves. These state constitutional clauses
might sound to modern ears as if they only forbade state-run lotteries. If so,
“private” gambling might be permissible. The clauses are potentially
susceptible, however, to a broader reading that forbids legalization of the sale
of any lottery tickets. Sixty-two percent of Americans in 1868—a solid
majority—lived in states that banned legalization of the sale of lottery tickets
in their state constitutions. Thus, it is highly likely that whatever rights the
Fourteenth Amendment creates, those rights do not include a federal consti-
tutional right to gamble. State constitutional bans on lotteries were found in
83% of Midwestern–Western state constitutions, 67% of Southern state
constitutions, and 30% of Northeastern state constitutions. Lottery bans were
found in 50% of the pre-1855 but in 74% of the post-1855 constitutions. The
trend in 1868, then, was toward more morals legislation, not less.
2. Dueling.—One traditional activity between two mutually consenting
adults with a rich historical pedigree is dueling. Duels to the death were fa-
mously fought in old England and in colonial America; even Alexander
Hamilton, one of the brightest and most illustrious of the framers of our
Constitution, was willing to engage in a duel that resulted in his death.
434
Thus, surely if the framers of the Fourteenth Amendment had meant to con-
stitutionalize a principle of leaving people alone or of anti-paternalism they
431. See Calabresi, supra note 241, at 1525–26 (arguing that Lawrence was a symbolic opinion
and an affirmation of the status quo rather than an example of the Supreme Court enacting radical
social change).
432. Id. at 1518.
433. E.g., M
INN. CONST. of 1857, art. IV, § 31.
434. 26
THE PAPERS OF ALEXANDER HAMILTON: MAY 1802–JULY 1804, at 235–37 (Harold C.
Syrett ed., 1979).
102 Texas Law Review [Vol. 87:7
ought to have left in place the ancient right to duel—a right that could even
have been said to have been deeply rooted in history and tradition.
The evidence, however, from the thirty-seven state constitutions in
effect in 1868 says otherwise. Twenty-two states at that time—a majority—
had specific clauses in their constitutions that penalized or discouraged
dueling. Far from recognizing a right of mutually consenting adults to fight
to the death the way professional boxers or football players sometimes do
even today, the generation that ratified the Fourteenth Amendment was pa-
ternalistic when it came to dueling. Typical of the twenty-two state
constitutional clauses penalizing dueling is the following language from the
Wisconsin state constitution:
Any inhabitant of this State who may hereafter be engaged, either
directly or indirectly in a duel, either as principal or accessory, shall
forever be disqualified as an elector, and from holding any office un-
der the Constitution and laws of this State, and may be punished in
such manner as shall be prescribed by law.
435
Not only was there not a fundamental right to duel, there was a fundamental
police power of state government to outlaw, regulate, and discourage
dueling. What conclusions, if any, to draw from this is obviously a matter
for debate.
Looking at bans on dueling by population, it turns out that 69%—or just
over a two-thirds supermajority—of all Americans in 1868 lived in states
with paternalistic anti-dueling language in their state constitutions. Such
anti-dueling clauses were found in 80% of Southern, 75% of Midwestern–
Western, and 10% of Northeastern state constitutions in 1868. They were
relatively recently added clauses, found in 44% of the pre-1855 constitutions
but in a whopping 74% of the post-1855 constitutions. This is consistent
with the idea that America between 1855 and 1868 was a society on a series
of important moral crusades: a crusade against slavery and for equal civil
rights, a crusade against dueling, a crusade for women’s rights, a crusade
against lotteries, and a crusade against alcohol that culminated many decades
later in Prohibition.
436
As we have just seen, most state constitutions at this
time discouraged dueling by preventing anyone who engaged in or assisted a
duel from holding any public office.
437
Others provided for additional
punishments as could be prescribed by law.
438
3. Alcohol.—Speaking of lotteries and dueling, we are naturally led to
the subject of alcohol for the reasons just mentioned. Did the ratifiers of the
435. WIS. CONST. of 1848, art. XIII, § 2.
436. See
JAMES A. MORONE, HELLFIRE NATION 213 (2003) (“In an era rich with moral
crusades and millennial dreams, the Civil War itself became the long-awaited American
apocalypse.”).
437. E.g., W
ISC. CONST. of 1848, art. XIII, § 2.
438. E.g., id.
2008] Individual Rights Under State Constitutions in 1868 103
Fourteenth Amendment in 1868 understand it to protect a fundamental right
to ingest alcohol, or, by analogy, drugs or other substances that might help
one better “define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life”?
439
Only three state constitutions
in 1868—a small minority of the thirty-seven—prohibited or severely limited
the sale and use of alcohol within the state. A typical state constitutional
clause in this genre provided, “No license to traffic in intoxicating liquors
shall hereafter be granted in this State; but the general assembly may, by law,
provide against evils resulting therefrom . . . .”
440
Only 12% of Americans in
1868 lived in these three somewhat dry states. Limits on alcohol could be
found in 13% of Southern, 10% of Northeastern, and 8% of Midwestern–
Western states. None of these states were in the far West, where Westerners
must still at that time have liked their saloons. Limits on alcohol were
equally common in 1868 in older and in more recent constitutions. In
addition, West Virginia had a weaker clause permitting the legislature to pass
laws regulating or prohibiting liquor sales.
441
What conclusions, if any, to
draw from this very limited historical data is a matter for fair debate.
O. Government Structure
A number of state constitutions protected individuals or officeholders
with rights of government structure in situations where the absence of those
rights would heavily burden individual rights. A comprehensive survey of
the common government structures in state constitutions in 1868 is well be-
yond the scope of this article, but we will now briefly address just a few
rights of government structure that served to protect the individual rights of
citizens or officeholders and that were arguably deeply rooted in history and
tradition in 1868.
1. Separation of Powers.—Several state bills of rights specifically
protected individuals from being subjected to the authority of a government
official simultaneously exercising a combination of legislative, executive,
and judicial power. More commonly, the state constitutions in 1868 had a
separate freestanding article protecting the separation of powers for the bene-
fit of their individual citizens.
442
All in all, twenty-nine out of thirty-seven
states in 1868—or an Article V, three-quarters consensus of the states—
specifically provided for the division of their state governments into three
separate and co-equal departments: the executive, the judicial, and the
439. See generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
440. E.g., O
HIO CONST. of 1851, sched., § 18.
441. W.
VA. CONST. of 1861, art. XI, § 4 (“Laws may be passed regulating or prohibiting the
sale of intoxicating liquor within the limits of this State.”).
442. E.g., V
A. CONST. of 1864, art. II (“The legislative, executive, and judiciary departments
shall be separate and distinct, so that neither exercise the powers properly belonging to either of the
others . . . .”).
104 Texas Law Review [Vol. 87:7
legislative. A typical separation-of-powers clause provided, “The powers of
government shall be divided into three distinct departments, and each of
them confided to a separate magistracy, to wit: those which are legislative, to
one; those which are executive, to another; and those which are judicial, to
another.”
443
Sixty-six percent of the total U.S. population in 1868—roughly
two-thirds—lived in states that constitutionally guaranteed the separation of
powers. Such guarantees could be found in 93% of Southern, 70% of
Northeastern, and 67% of Midwestern–Western states. Seventy-two percent
of the pre-1855 and 84% of the post-1855 constitutions had separation-of-
powers provisions.
This fact is striking because Professor Bruce Ackerman has observed
that James Madison proposed adding a separation-of-powers clause to the
federal Constitution but the framers declined to do so.
444
Ackerman reads a
lot into their failure to adopt this specific clause.
445
Others have suggested
the separation of powers is less strictly followed at the state than at the fed-
eral level.
446
Our data here suggest, however, that in 1868 when the
Fourteenth Amendment was ratified, an Article V, three-quarters consensus
of the states supported the idea that Americans had a fundamental right to a
government of separated powers. What, if anything, a court ought to do with
this data is a subject for another day.
2. Power to Suspend or Dispense With the Laws.—A big issue in the
English Revolution of 1688 was whether the King had the power to suspend
or dispense with Acts of Parliament, or whether only Parliament could sus-
pend its own laws.
447
In response to this concern, the framers of the federal
Constitution specifically imposed a duty on the President that he take care
that the laws be faithfully executed.
448
The framers put the Take Care Clause
in our Constitution to make it clear that the President did not have a dis-
pensing power.
449
443. E.g., CONN. CONST. of 1818, art. II.
444. Bruce Ackerman, Liberating Abstraction, 59 U.
CHI. L. REV. 317, 318 n.4 (1992) (citing
BERNARD SCHWARZ, 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1028 (1971)). The
proposed separation-of-powers clause died in the Senate. S
CHWARZ, supra, at 1146.
445. Ackerman, supra note 444, at 318 n.4 (asserting that the omission of the clause was “by no
means unintentional”).
446. See, e.g., Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist
Separation of Powers Ideals in the States, 52 V
AND. L. REV. 1167, 1189 (1999) (arguing that
enforcement of separation-of-powers clauses “by state courts is weaker than at the federal level”).
447. Christopher N. May, Presidential Defiance of “Unconstitutional” Laws: Reviving the
Royal Prerogative, 21 H
ASTINGS CONST. L.Q. 865, 871–72 (1994) (documenting King James’s
abuse of the royal-prerogative dispensing power, which eventually led to his abdication in the
Glorious Revolution of 1688).
448. U.S.
CONST. art. II, § 2.
449. May, supra note 447, at 873 (“[T]he requirement that the President ‘take Care that the
Laws be faithfully executed’ is a succinct and all-inclusive command through which the Framers
2008] Individual Rights Under State Constitutions in 1868 105
It is striking in this respect that sixteen states—a minority, although a
very sizeable one—had language in their state constitutions that explicitly
granted the power to suspend laws exclusively to the legislature. A typical
such clause provided, “[N]o power of suspending laws shall be exercised,
unless by the legislature or its authority.”
450
By population, this limit applied
to 47% of Americans. It was found in 60% of Northeastern, 47% of
Southern, and 25% of Midwestern–Western state constitutions. Fifty percent
of the pre-1855 and 37% of the post-1855 state constitutions limited the
suspension of laws.
Even more dramatically, fully thirty-two states out of thirty-seven in
1868—or an Article V constitutional consensus—provided specifically in
their state constitutions that the governor “shall take care that the laws be
faithfully executed.”
451
Eighty-nine percent of the population—a huge
supermajority—lived in these thirty-two states. Take-care clauses could be
found in 92% of Midwestern–Western state constitutions, 87% of the
Southern state constitutions, and 80% of Northeastern state constitutions.
Take-care clauses could be found in 89% of the pre-1855 and in 84% of the
post-1855 constitutions. Americans may thus have a fundamental right not
to have the executive suspend the laws that apply to them, a right that is
deeply rooted in history and tradition. Admittedly, state take-care clauses
only explicitly set limits on governors’ powers by imposing on them a duty,
but they also may provide individuals with a legal right.
3. Taxes.—Seven states in 1868—a small minority—prohibited taxation
of any form without the consent of the people or their legislative
representatives. This right echoed the famous cry of the people of
Massachusetts in the 1770s that they were the victims of an unconstitutional
taxation by Parliament without representation in it.
452
A typical clause
forbidding taxation without popular consent stated, “No tax or duty shall be
imposed without the consent of the people or their representatives in the leg-
islative assembly, and all taxation shall be equal and uniform.”
453
Sixteen
percent of the American people in 1868 lived in states with these clauses in
their state constitutions. Such clauses could be found in 30% of
Northeastern, 20% of Southern, and only 8% of Midwestern–Western state
constitutions. Tax clauses were found in 17% of the pre-1855 constitutions
and in 21% of the post-1855 constitutions.
sought to prevent the Executive from resorting to the panoply of devices employed by English kings
to evade the will of Parliament.”).
450. E.g., P
A. CONST. of 1838, art. IX, § 12.
451. E.g., L
A. CONST. of 1868, tit. III, art. 65.
452. See C
ONCISE DICTIONARY OF AMERICAN HISTORY 927–28 (Wayne Andrews ed., 1962)
(discussing the history of the famous phrase “Taxation without Representation is Tyranny!”).
453. E.g., O
R. CONST. of 1857, art. I, § 33.
106 Texas Law Review [Vol. 87:7
4. Right of Speech or Debate in the Legislature.—Twenty-six states out
of thirty-seven in 1868—or two-thirds but not three-quarters of the total—
specifically protected the freedom of speech, deliberation, and debate in the
legislature by prohibiting its use as a foundation for prosecution or civil ac-
tion in any court. The state constitutions typically provided, “For any speech
or debate in either house of the Legislature, the members shall not be ques-
tioned in any other place.”
454
Eighty percent of all Americans in 1868 lived
in states with speech-or-debate clauses in their constitutions. There was sig-
nificant geographical variance in the presence of speech-or-debate clauses—
100% of Northeastern, 67% of Midwestern–Western, and 53% of Southern
states protected legislative speech or debate. There was also significant dif-
ference by date—94% of the pre-1855 and 47% of the post-1855
constitutions had speech-or-debate clauses.
5. Privilege from Civil Process (for Legislators).—A right related to
protection for speech or debate is privilege from civil process during a
legislative session. Readers here will remember former President Bill
Clinton’s claim for a presidential privilege from civil process in the Paula
Jones sexual harassment lawsuit during the time he held office as
President.
455
Seven states in 1868—a minority—gave members of their
legislatures privilege from civil process during a legislative session (and for a
designated time period surrounding that session). Usually coupled with a
privilege from arrest, these clauses stated,
Members of the legislature shall, in all cases except treason, felony,
and breach of the peace, be privileged from arrest, and they shall not
be subject to any civil process during the session of the legislature, nor
for fifteen days next before the commencement and after the termina-
tion of each session.
456
Twelve percent of the population in 1868 lived in states with these clauses in
their constitutions. Such clauses were found in 33% of Midwestern–Western
state constitutions, 13% of Southern state constitutions, and 10% of
Northeastern state constitutions. Seventeen percent of the pre-1855 and 21%
of the post-1855 constitutions granted this privilege.
6. Privilege from Arrest (for Legislators).—Privileges from criminal
process or arrest were unsurprisingly far more common in state constitutions
in 1868. Twenty-nine out of thirty-seven states—or a three-quarters Article
V consensus of the states—granted members of their legislatures privilege
454. E.g., N.Y. CONST. of 1846, art. III, § 12.
455. See Clinton v. Jones, 520 U.S. 681, 686 (1997) (“In response to the complaint, [President
Clinton] promptly advised the District Court that he intended to file a motion to dismiss on grounds
of Presidential immunity . . . .”).
456. E.g., C
AL. CONST. of 1849, art. IV, § 12.
2008] Individual Rights Under State Constitutions in 1868 107
from arrest during a legislative session (and for a designated time period sur-
rounding that session). These clauses typically provided:
The members of the general assembly shall, in all cases except
treason, felony, breach or surety of the peace, be privileged from arrest
during their attendance at the sessions of their respective houses, and
in going to and returning from the same; and for any speech or debate
in either house, they shall not be questioned in any other place.
457
Seventy-eight percent of Americans lived in these states. The privilege was
found in 92% of Midwestern–Western, 73% of Southern, and 70% of
Northeastern state constitutions. Eighty-three percent of the pre-1855,
compared to 74% of the post-1855, constitutions protected legislators in this
manner.
7. Inviolable Constitution.—In an effort to guard against transgressions
of the state government, four states—a minority—declared that everything in
the state constitution shall remain inviolate and that all laws contrary to it
shall be void. A typical such clause stated, “To guard against transgressions
of the high powers herein delegated, we declare that everything in this bill of
rights is excepted out of the general powers of government, and shall forever
remain inviolate; and all laws contrary thereto, or the following provisions,
shall be void.”
458
Eighteen percent of the population in 1868 lived in states
with such provisions in their constitutions. Such provisions could be found
in 20% of Southern and 10% of Northeastern state constitutions and not in
any Midwestern–Western state constitutions. Seventeen percent of the pre-
1855 and 5% of the post-1855 constitutions protected this right.
8. Uniform Government.—One state, Virginia, provided that the people
have a right to uniform government, and that no separate government within
the limits of the state ought be erected or established. The clause read as
follows: “That the people have a right to uniform government; and, therefore,
that no government separate from, or independent of the government of
Virginia, ought to be erected or established within the limits thereof.”
459
Three percent of the population lived in Virginia in 1868. Virginia’s consti-
tution was ratified after 1855. It is, to say the least, ironic that it was Virginia
that had this clause in its state constitution, since the state of West Virginia
was in fact carved out of it, by perfectly constitutional means, during the
Civil War.
460
457. E.g., KY. CONST. of 1850, art. II, § 25.
458. E.g., T
EX. CONST. of 1868, art. I, § 23.
459. V
A. CONST. of 1864, Bill of Rights, art. I (incorporating VA. CONST. of 1776, Declaration
of Rights, § 14).
460. Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 C
AL. L.
REV. 293, 297–98 (2002).
108 Texas Law Review [Vol. 87:7
P. Affirmative Rights to a Public-School Education and to Welfare
The final set of rights that we found in state constitutions in 1868 is in
many ways the most important, and perhaps the most surprising. We found
that an Article V, three-quarters consensus of the thirty-seven states in 1868
recognized a fundamental state constitutional duty to provide a public-school
education as a matter of their formal, positive state constitutional law. The
existence of such a duty on government could be said to create a right on the
part of individuals. In Prigg v. Pennsylvania,
461
the Supreme Court held that
the individual constitutional right of slave owners to recover fugitive slaves
implied that the federal government had the power to pass a federal fugitive-
slave law—a power not expressly spelled out in Article I, Section 8.
462
Thus,
Justice Story’s opinion stood for the proposition that an individual right can
give rise to government power, which is far more tenuous than our claim that
a government duty to educate implies an individual right to be educated at
public expense.
A right to a public-school education is thus arguably deeply rooted in
American history and tradition and is implicit in the concept of ordered
liberty. This is an extraordinary finding because of its implications for
Brown v. Board of Education, and because it is usually argued that a distinc-
tive feature of American constitutionalism is that it guarantees negative
liberties against government but not positive claims for entitlements from
government.
463
That point is generally true, but our data on fundamental
state constitutional rights in 1868 suggest that there may be at least one very
fundamental positive-law entitlement that all Americans have long
possessed. In addition to finding an Article V consensus that Americans had
a right in 1868 to a public-school education, we found that a few state con-
stitutions imposed on their state governments an obligation to run certain
other charitable public institutions. There was not, however, a widespread
public consensus on that matter in 1868 the way there was a widespread
public consensus on the states’ duty to provide a public-school education.
1. Duty to Provide a Public-School Education.—An astonishing thirty-
six out of thirty-seven states in 1868—an Article V, three-quarters
consensus—imposed a duty in their constitutions on state government to
provide a public-school education. We think it is fair to construe these
clauses as in effect guaranteeing individuals a right to some kind of govern-
ment provision of a public-school education. The Supreme Court has thus
461. 41 U.S. (16 Pet.) 539 (1842).
462. Id. at 615 (reasoning that because the individual right of slave owners to recover fugitive
slaves was enumerated in Article IV, Section Two of the Constitution, “the natural inference
certainly is, that the national government is clothed with the appropriate authority and functions to
enforce it”).
463. See Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (“[T]he Constitution is a
charter of negative rather than positive liberties.”).
2008] Individual Rights Under State Constitutions in 1868 109
far rejected the notion of a right to public education. In San Antonio
Independent School District v. Rodriguez,
464
the Court expressly said that
public education is not a fundamental right.
465
It held:
Education, of course, is not among the rights afforded explicit
protection under our federal Constitution. Nor do we find any basis
for saying it is implicitly so protected. As we have said, the undis-
puted importance of education will not alone cause this Court to
depart from the usual standard for reviewing a State’s social and eco-
nomic legislation.
466
However, the Court has also recognized the importance of education without
deeming it a fundamental right, saying instead that it “has a pivotal role in
maintaining the fabric of our society”
467
and is “the most important function
of state and local governments.”
468
Ninety-two percent of all Americans in 1868 lived in states whose
constitutions imposed this duty on state government. Every state except
Illinois, which had a pre-1855 constitution, had a clause imposing a duty on
the state government to offer at least some kind of a public-school education.
A typical clause of this kind provided, in the words of the Mississippi
Constitution:
As the stability of a republican form of government depends mainly
upon the intelligence and virtue of the people, it shall be the duty of
the legislature to encourage, by all suitable means, the promotion of
intellectual, scientific, moral, and agricultural improvement, by estab-
lishing a uniform system of free public schools, by taxation or
otherwise, for all children between the ages of five and twenty-one
years, and shall, as soon as practicable, establish schools of higher
grade.
469
These clauses then guaranteed as a matter of formal positive law that indi-
viduals essentially had a fundamental right to obtain a public-school
education if they wanted one. The clauses in question, however, did not
make school attendance compulsory for the young, so parents could still
choose to homeschool their children, or possibly, like the Amish, to not edu-
cate them beyond a certain minimal level. Notably, South Carolina required
not only the provision of public schools but also compulsory attendance.
470
This was an exception. The issue of compulsory school attendance was one
464. 411 U.S. 1 (1973).
465. Id. at 35.
466. Id.
467. Plyler v. Doe, 457 U.S. 202, 203 (1982).
468. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
469. M
ISS. CONST. of 1868, art. VIII, § 1.
470. See S.C.
CONST. of 1868, art. X, §§ 3, 4 (“It shall be the duty of the general assembly to
provide for the compulsory attendance, at either public or private schools, of all children between
the ages of six and sixteen years . . . .”).
110 Texas Law Review [Vol. 87:7
that was generally not addressed or resolved in 1868, despite the provisions
for public education.
This finding is striking because it could be argued to imply that a right
to a public-school education in 1868 was a privilege or immunity for
Fourteenth Amendment purposes as to which the states were not allowed to
discriminate on the basis of race. The framers and ratifiers of the Fourteenth
Amendment may well not have understood that the Amendment outlawed
segregation in education, but arguably that is precisely what it did.
Obviously, it is the formal text of the Fourteenth Amendment that governs,
and not the uncodified and erroneous ideas of the ratifiers of that text as to
what it might mean.
Judge Michael McConnell, in his originalist defense of Brown v. Board
of Education, found that the Congress that passed the Civil Rights Act of
1875 came close to passing federal legislation outlawing segregation in state
public schools on Fourteenth Amendment grounds.
471
One question raised
by McConnell’s brilliantly defended thesis is how the Congress in 1875
could have thought that federal legislation prohibiting school segregation was
appropriate to “enforce” the rights guaranteed by Section One of the
Fourteenth Amendment. One explanation that our Article supports is that
public-school education was conceived as a privilege or immunity as to
which class-based legislation was forbidden.
As it happens, three states specifically discussed segregation in
education in their state constitutions—Missouri permitted it,
472
and South
Carolina and Louisiana prohibited it.
473
Vermont’s state constitutional clause
requiring the state to offer a public-school education was slightly weaker
than the others. It stated only that “a competent number of schools ought to
be maintained in each town.”
474
North Carolina’s state constitutional clause
on public-school education was particularly strong, calling the right to
471. See Michael W. McConnell, The Originalist Case for Brown v. Board of Education, 19
H
ARV. J.L. & PUB. POL’Y 457, 463 (1995) (indicating that the Civil Rights Act of 1875 was almost
passed with a provision prohibiting segregation in public schools, though that provision was
ultimately stricken); Michael W. McConnell, Originalism and the Desegregation Decisions, 81 V
A.
L. REV. 947, 1060–79 (1995) (detailing several failed attempts by Congress to pass the Civil Rights
Act of 1875 with a provision requiring desegregation of public schools); Michael W. McConnell,
The Originalist Justification for Brown: A Reply to Professor Klarman, 81 V
A. L. REV. 1937, 1947
(1995) (“[A] substantial majority of the Congress . . . took the position that public school
segregation violates the Fourteenth Amendment.”).
472. M
O. CONST. of 1865, art. IX, § 2 (“Separate schools may be established for children of
African descent.”).
473. See L
A. CONST. of 1868, tit. VII, art. 135 (“All children of this state between the years of
six and twenty-one shall be admitted to the public schools or other institutions of learning sustained
or established by the state in common, without distinction of race, color, or previous condition.”);
S.C.
CONST. of 1868, art. X, § 10 (“All the public schools, colleges and universities of this state,
supported in whole or in part by the public funds, shall be free and open to all the children and
youths of the State, without regard to race or color.”).
474. V
T. CONST. of 1793, ch. II, § 41 (emphasis added).
2008] Individual Rights Under State Constitutions in 1868 111
education a privilege and placing the clause within the Bill of Rights.
475
This
is consistent with the idea argued for above that this right was a privilege or
immunity as to which the Fourteenth Amendment forbade the making of ra-
cial classifications. The pervasiveness in state constitutional law in 1868 of a
right to a public-school education, or a duty of the state to provide a free
education to all its citizens, is striking because we have no such right, at least
explicitly, in our federal Constitution. This reflects partly the fact that most
of our Constitution was drafted in the eighteenth century and partly the fact
that education was originally seen as being a matter for the states and not for
the federal government. Some scholars have argued that a right to public
education is inherent in other rights, for instance, in the right to substantive
due process.
476
These findings may support such claims, although they do
not necessarily lead to the conclusion that public school funding must be
equal. If the Supreme Court were to revisit Rodriguez, it is possible that the
overwhelming presence of the right to education in state constitutions in
1868 would qualify as at least a partial “basis for saying it is implicitly so
protected.”
477
2. Other Affirmative Rights to Government Aid.—Nine states out of
thirty-seven in 1868—a minority—provided in their state constitutions for
the existence of public institutions, provided for and supported by the state,
to aid some of those in need. A typical clause provided, “Institutions for the
benefit of the insane, blind, and deaf and dumb shall always be fostered and
supported by the State, and be subject to such regulations as may be pre-
scribed by the general assembly.”
478
Note that this clause imposes a duty on
the states in question and creates an affirmative right to government aid on
the part of the insane, blind, deaf, and dumb. Twenty-three percent of
Americans living in 1868—just shy of one-quarter of the population—lived
in states with clauses of this type in their state constitutions. Such clauses
were found in 42% of Midwestern–Western, 27% of Southern, and 0% of
Northeastern state constitutions. They were present in 17% of the pre-1855
constitutions and in 32% of the post-1855 constitutions, so the trend toward
government provision of positive aid was already noticeable when the
Fourteenth Amendment was ratified in 1868. In addition, Michigan and
Wisconsin (the former also included a clause on public institutions generally)
required that the legislature provide for the establishment of free public
475. N.C. CONST. of 1868, art. I, § 27 (“The people have a right to the privilege of education,
and it is the duty of the State to guard and maintain that right.”).
476. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the
U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 N
W. U. L. REV. 550,
612 (1992) (arguing that the Fourteenth Amendment is cast in terms of equal access to state-created
rights).
477. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
478. E.g., O
HIO CONST. of 1851, art. VII, § 1.
112 Texas Law Review [Vol. 87:7
libraries.
479
Louisiana went further, making it the duty of the general
assembly to oblige parishes to support all paupers residing within their
limits.
480
This is the only state constitution we found in 1868 that could be
argued to create a right to welfare. It is interesting, but not surprising, that
such a right would have existed in the only civil law state in the country. The
civil law, with its ties to the Catholic Church, is generally less libertarian and
more paternalistic than the common law.
481
The subject of whether the fed-
eral Constitution created a right to welfare was a major topic of discussion in
the 1960s and 1970s.
482
479. MICH. CONST. of 1850, art. XIII, § 12 (“The legislature shall also provide for the
establishment of at least one librarian in each township . . . .”);
WISC. CONST. of 1848, art. X, § 2
(“The residue [of funds] shall be appropriated to the support and maintenance of Academies and
Normal Schools, and suitable libraries and apparatus therefor.”).
480. L
A. CONST. of 1868, tit. VI, art. 126 (“It shall be the duty of the general assembly to make
it obligatory upon each parish to support all paupers residing within its limits.”).
481. See John C. Coffee, Jr., The Rise of Dispersed Ownership: The Roles of Law and the State
in the Separation of Ownership and Control, 111 Y
ALE L.J. 1, 49 (2001) (contrasting the common
law, under which individuals were to fend for themselves, with the civil law, “which was inherently
and pervasively paternalistic”).
482. See, e.g., Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 3 W
ASH. U.
L.Q. 659, 663 (1979) (explaining that the right to welfare is “but a thinly fictionalized report of
various decisions handed down by the United States Supreme Court over the six-year period from
1969 to 1974”).
2008] Individual Rights Under State Constitutions in 1868 113
IV. A Broad Look at Rights
A. By Number of States
Table 1: Prevalence of Rights by Number of States
114 Texas Law Review [Vol. 87:7
B. By Population
Table 2: Prevalence of Rights by Population
V. Discussion
We have now completed our long and winding tour of the individual
rights protected as a matter of state constitutional law in 1868. We have seen
that almost all of the provisions of the federal Bill of Rights, and other ana-
logs to it in other parts of the federal Constitution, were protected by state
constitutions in 1868. In addition, state constitutions explicitly protect some
important rights, such as the right to a public-school education, that were not
protected in 1868 by the federal Constitution. One purpose of our nose count
or tally of states, as we said in the Introduction, was to help determine how
fundamental, or deeply rooted, or implicit in the concept of ordered liberty a
right really is as revealed by state constitutional law in 1868. This arguably
is relevant to debates about the original meaning of the Fourteenth
Amendment or the contours of modern substantive due process. The charts
above reveal that thirty-one rights-related provisions that we separately iden-
tified were recognized by an Article V consensus of three-quarters of the
states in 1868 when the Fourteenth Amendment Privileges or Immunities
2008] Individual Rights Under State Constitutions in 1868 115
Clause was ratified. Another eleven individual-rights-related provisions
were recognized by a supermajority of two-thirds of the states in their 1868
positive-law state constitutions, which gives those rights a claim to the status
of being fundamental rights as well. An additional eleven rights-related pro-
visions were recognized and protected by a majority of state constitutions in
1868. Three-quarters of all Americans living in 1868 lived in states that rec-
ognized twenty-eight of the rights-related provisions we discussed, and two-
thirds of Americans lived in states that recognized another ten of the rights-
related provisions. Substantial supermajorities of Americans thus lived in
states in 1868 that recognized an astonishing thirty-eight individual rights-
related provisions in their positive state constitutional law. American culture
in 1868 was thickly populated by the protection of individual fundamental
rights. An additional fifteen rights-related provisions beyond these thirty-
eight were enshrined by constitutions governing a majority of Americans
living in 1868.
Many of the most common state constitutional rights, for example, the
right of free speech and the right to petition for habeas corpus, are also pro-
tected by the federal Constitution. However, some interesting discrepancies
emerged as well. For instance, only a majority and not a supermajority of the
states (and of the total population) had, in effect, a right to bear arms or to be
free from the imposition of religious qualifications for office. This number
arguably changes if one counts clauses allowing people abstractly a right to
defend their liberty and property. Conversely, an Article V, three-quarters
consensus of the states (and population) had a right to a public-school
education—a right that is not explicitly found anywhere in the federal
Constitution. This right is an implication of the duty state constitutions im-
posed on their legislatures to provide all children a free public-school
education. Patterns and divergences like these were abundant. Specific
findings and implications are discussed above for each of the individual
rights and limitations. This Part will provide a broader, though inevitably
noncomprehensive, discussion of the most striking results.
Professor Akhil Reed Amar’s exceptional and well-received book,
The Bill of Rights: Creation and Reconstruction, offers an excellent medium
through which to showcase the significance of our findings. In his book,
Amar first gives a thorough narrative of the history and meaning of each
Amendment in our Bill of Rights.
483
He next argues that, as an original mat-
ter in 1791, the rights protected by the Bill of Rights had a far more
collective meaning than the libertarian, individualistic meaning they acquired
in 1868 when the Fourteenth Amendment was ratified.
484
We think Amar is
exactly right that for those wondering about incorporation or judicial
483. See generally AMAR, supra note 44 (establishing the relevant political and legal context in
which each Amendment was drafted to elucidate its meaning).
484. See id. at 125–27 (highlighting the original populist character of the Antifederalist
demands for a bill of rights in contrast to the current emphasis on individual rights).
116 Texas Law Review [Vol. 87:7
protection against the states of unenumerated rights in federal constitutional
law, the question is controlled not by the original meaning of the first ten
Amendments in 1791 but instead by the meaning those texts and the
Fourteenth Amendment had in 1868.
485
Our Article here builds on this
critical theme of Amar’s by offering a descriptive account of what individual
rights were thought to be truly fundamental in 1868 as a matter of positive
state constitutional law. We express no opinion here on Amar’s claim that
the Fourteenth Amendment literally incorporates the federal Bill of Rights so
that it applies against the states.
486
Amar makes a powerful case, but that is a
subject for another time. We do claim that something very much like the
selective incorporation of the Bill of Rights that has actually occurred as a
matter of Fourteenth Amendment substantive due process can be explained
and justified by asking what rights were fundamental and deeply rooted in
history and tradition as a matter of state constitutional law in 1868. On this
question, we reach largely the same results as Amar, although for different
reasons.
Amar argues that there are roughly two types of rights: those that
address agency and populism problems (henceforth referred to as “collective
rights”) and those that are antimajoritarian and individualistic (henceforth
referred to as “individualistic rights”).
487
He proposes that some of the
clauses of the federal Bill of Rights, such as the Establishment Clause, were
originally meant to protect a collective right.
488
Amar argues, correctly in
our view, that the Establishment Clause was meant to permit states to estab-
lish religions and that it only protected the state-established churches from a
federally established church.
489
Amar thus concludes that it would make no
more sense to incorporate a states-rights clause like the federal Establishment
Clause against the states than it would make sense to so incorporate the fed-
eral Tenth Amendment.
490
This point obviously has important implications
for the theory of incorporation, and indeed it leads Amar to propose his own
theory of “refined incorporation.”
491
Essentially, Amar’s theory of refined
485. See id. at 234–35 (recounting the broad conception of freedom of speech popularized in
the decades leading up to the adoption of the Fourteenth Amendment as a determinant of what
rights are protected by the Amendment against states’ intrusion). Kurt Lash rightly refers to this
transformation as the “second adoption.” See Lash, supra note 61, at 1109 (“This Article explores
the proposition that the Free Exercise Clause was adopted a second time through its incorporation
into the Privileges or Immunities Clause of the Fourteenth Amendment and that the scope of the
new Free Exercise Clause was intended to include protections unanticipated at the Founding.”).
486. See A
MAR, supra note 44, at 174 (asserting the correctness of Hugo Black’s contention
that the text of the Fourteenth Amendment applies the Bill of Rights to the states).
487. See id. at xiv–xv (postulating a basic distinction in the Bill of Rights between majoritarian
and populist “republican political ‘right[s] of the people,’” and libertarian provisions conferring
“liberal civil rights—‘privileges and immunities’ of individuals”).
488. Id. at xiv.
489. Id. at 41.
490. Id. at 41–42.
491. Id. at xiii–xiv.
2008] Individual Rights Under State Constitutions in 1868 117
incorporation calls on the Supreme Court to code every sentence or clause of
the original federal Constitution of 1787 and its twenty-seven Amendments
to determine whether the sentence or clause in question protects a collective
or an individual right.
492
If the right protected by the clause in question is
collective, and concerns the self-governance of states, Amar argues it ought
not to be incorporated by the Fourteenth Amendment against the states.
493
If
the right in question, however, is an individualistic right, then Amar argues it
can and should be incorporated against the states.
494
Amar’s refined theory
of incorporation thus allows for acknowledgement that some rights in the
federal Constitution and Bill of Rights are states’ rights and some are
individuals’ rights.
495
Only the latter, and not the former, can be repacked as
being among the “privileges and immunities” of American citizens that are
protected by the Fourteenth Amendment.
496
Amar’s theory is attractively
crisp, and it explains and legitimizes the Supreme Court’s messy substantive-
due-process incorporation case law.
The contribution our historical study could be argued to make to this
constitutional debate is as follows: Many of the rights that Amar identifies as
collective—such as the rights protected by the federal Establishment Clause,
the Tenth Amendment, and the Second Amendment right to keep and bear
arms—were also found in many, and in some cases in most, of the thirty-
seven state constitutions that were in effect in 1868. In those state
constitutions, the rights to be free of an established church or to own guns
were clearly individual rights of citizens according to state constitutional law
in 1868 and not merely collective rights. In fact, Amar has already acknowl-
edged the existence of some of these state analogs and, as a result, softened
his position.
497
He has conceded, for example, that the presence of establish-
ment clauses in state constitutions may make nonestablishment a “soft
substantive rule” (although not a full privilege or immunity).
498
Our compre-
hensive chronicle of rights exposes other instances of states turning federal
constitutional collective rights of states into individual rights against the gov-
ernment instead. This could be argued to shed light on the original meaning
of the Fourteenth Amendment.
492. See id. at xiv (“[A]ll of the privileges and immunities of citizens recognized in the Bill of
Rights became ‘incorporated’ against states by dint of the Fourteenth Amendment. But not all of
the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at
least in part rights of states . . . .”).
493. See id. at 222 (proposing that, in considering whether a clause should be incorporated, “the
right question is not whether a clause is fundamental but whether it is truly a private right of the
citizen rather than a right of the states or the public generally”).
494. Id.
495. Id.
496. Id. at xiv–xv.
497. Id. at 251–55.
498. Id. at 251.
118 Texas Law Review [Vol. 87:7
In addition to collective rights of states and rights of individual citizens,
our amended Constitution protects another type of rights: structural rights,
such as the right not to have a federal statute suspended or dispensed with by
the President acting alone. Amar does not consider structural constitutional
rights of this kind to be individual freedoms to be incorporated by the
Fourteenth Amendment.
499
He believes that “[t]he right question is not
whether a clause is fundamental but whether it is truly a private right of the
citizen rather than a right of the states or the public generally.”
500
But our
findings could most definitely be used to challenge Amar’s narrow definition
of individualistic rights. We found that many states mimicked some of the
most important of the structural guarantees of the federal Constitution; such
guarantees could, in specific cases or controversies, provide a cause of action
to an individual litigant. For example, an Article V consensus of three-
quarters of the states provided for the division of government into three
separate departments—the executive, the judicial, and the legislative. This
would confer on individuals a right not to be proceeded against by a govern-
ment official who was simultaneously both prosecutor and judge. That
occurrence would be a forbidden intermixture of the executive and judicial
powers. An Article V consensus of three-quarters of the states in 1868 rec-
ognized a right not to have a statute one is relying upon suspended or
dispensed with by the executive in cases where the individual is being pro-
ceeded against by the executive in violation of statutory law.
501
Thus, over
three-quarters of the 1868 state constitutions contained take-care clauses re-
quiring that the governor take care that the laws be faithfully executed. A
convincing claim could be made that the “right” to have a governor who can-
not suspend or dispense with the law is not meaningfully different from the
“right” to due process before a court before being deprived of life, liberty, or
property. Both take-care-clause rights and due-process-clause rights are
deeply rooted in our history and tradition—a point Amar may have
overlooked.
One of our intriguing findings is arguably quite central to Amar’s work:
evidence that state positive constitutional law in 1868 openly contemplated
the existence of at least some unenumerated fundamental, natural, and in-
alienable rights beyond all the many positive-law rights catalogued in this
Article. A right to privacy in sexual matters of the kind found by the
Supreme Court in Griswold v. Connecticut
502
or Lawrence v. Texas
503
could
499. See id. at 225 (stressing the need to “sort out which aspects of the pre-1866 Constitution
were indeed privileges of individuals (for example, habeas) and which were instead structural
provisions unique to the federal government and inappropriate for imposition on the states (for
example, capitation and bicameralism)”).
500. Id.
at 222.
501. Note that there is no individual right to force the executive to execute the law by
prosecuting someone else, a situation that should be clearly distinguished from the one governed by
the take-care clauses.
502. 381 U.S. 479, 485–86 (1965).
2008] Individual Rights Under State Constitutions in 1868 119
arguably be such a right. Clearly, not even a single state in 1868 protected a
right to privacy in its state constitution. But if those constitutions protected
natural-law rights, and if the right to privacy is a natural-law right, then
maybe constitutional recognition of natural-law rights is itself deeply rooted
in our history and tradition. This conclusion suggests that the Supreme
Court’s attempts in Washington v. Glucksberg and Michael H. v. Gerald D.
to cabin the right to privacy by limiting it to only those unenumerated rights
that are deeply rooted in American history and tradition may be doomed to
fail. If recognition of natural-law unenumerated rights is itself deeply rooted
in American history and tradition, then following Glucksberg simply leads
one back to the question of what is a natural and inalienable right. Of course,
Justice Scalia or Judge Bork might legitimately respond that just because a
lot of states in 1868 recognized the existence of natural-law rights does not
mean that they thought courts ought to recognize or enforce those rights
against state legislatures. They might also well dispute the claim that state
constitutional baby Ninth Amendments were understood in 1868 as endors-
ing the existence of natural law.
One other point on which we and Amar agree is that we have found that
positive state constitutional laws in 1868 were not so much efforts to create
and legislate the existence of individual fundamental rights as they were ef-
forts to declare and memorialize in writing what some of those rights might
be.
504
On this view, fundamental individual rights are preexisting
entitlements, and are simply “declared” or “acknowledged” or “recognized”
by our constitutions, bills of rights, and laws. Whether and to what degree
those rights or other unmentioned rights “like” them were meant to be judi-
cially enforceable or discoverable is a question that goes well beyond the
scope of this Article. We do think, however, that we have helped nail down
more clearly which rights are and which rights are not deeply rooted in our
history and tradition.
VI. Conclusion
Our goal here has been to stay as far away from normative claims as
we can manage and to simply positively describe the protections afforded to
individuals by positive state constitutional law in 1868. There is a huge
amount of normative writing and theorizing about the Fourteenth
Amendment and precious little scholarship that provides a descriptive
account of some of the rights that normative scholars have said the
Amendment might protect. Normative scholarship in this area is both
503. 539 U.S. 558, 578 (2003).
504. A
MAR, supra note 44, at 147–56 (describing the natural-rights-grounded declaratory
theory, which viewed the federal Bill of Rights as “not simply an enactment of We the People as the
Sovereign Legislature bringing new legal rights into existence, but rather a declaratory judgment by
We the People as the Sovereign High Court that certain natural or fundamental rights already
existed”).
120 Texas Law Review [Vol. 87:7
essential and fraught with risks. We think it helpful to stand back, hold our
breath, and simply collect, group, and count the positive state constitutional
rights that were in place in 1868. That is why we chose here to collect all the
individual rights that were recognized in state constitutional law in 1868,
when the Fourteenth Amendment was ratified, and group them together to
display the story of rights protection they tell. Remarkably strong and con-
sistent patterns emerge, creating what we hope will prove to be a rich and
valuable data set in the ongoing judicial discovery and subsequent protection
of our fundamental individual rights.
