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Kurt T. Lash - One of the best experts on this subject based on the ideXlab platform.
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Enforcing the Rights of Due Process: The Original Relationship Between the Fourteenth Amendment and the 1866 Civil Rights Act
Georgetown Law Journal, 2016Co-Authors: Kurt T. LashAbstract:Legal scholars have long assumed that the 1866 Civil Rights Act protected rights uniquely associated with national citizenship. Accordingly, most scholars assume that the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause provided after-the-fact authority for the 1866 Civil Rights Act. A close look at the original sources, however, reveals that key players in the Thirty-Ninth Congress viewed the Civil Rights Act as protecting rights associated with the Fifth Amendment’s Due Process Clause. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly viewed the Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Bingham opposed the Civil Rights Act, however, because he believed an Amendment must first be adopted granting Congress power to enforce the equal rights of due process. Following the ratification of the Fourteenth Amendment, Congress (now with Bingham’s support) repassed the Civil Rights Act and extended the majority of its protections to “all persons” — an extension authorized by the “all persons” Due Process Clause but not by the “citizens only” Privileges or Immunities Clause. Understanding the original link between the 1866 Civil Rights Act and the 1868 Due Process Clause requires rethinking a number of commonly accepted assumptions about the original Fourteenth Amendment. Much of the current Supreme Court’s “equal laws” doctrine may be supported by the original meaning of the Due Process Clause, while the Equal Protection Clause itself may communicate an altogether different principle of “equal protection.” Disentangling the Privileges or Immunities Clause from the Civil Rights Act also supports reading the Privileges or Immunities Clause as protecting the nationally enumerated rights of citizenship and not the unenumerated subjects of state-level civil rights now covered by the Due Process and Equal Protection Clauses.
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the Fourteenth Amendment and the privileges and immunities of american citizenship
2014Co-Authors: Kurt T. LashAbstract:This exhaustively researched book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. It follows the evolution in public understanding of 'the privileges and immunities of citizens of the United States', from the early years of the Constitution to the election of 1866. For 92 years nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and supporters of the Union to add an Amendment forcing the states to respect the rights announced in the first eight Amendments. But rather than eradicate state autonomy, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
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The origins of the privileges or immunities clause, part II: John Bingham and the second draft of the Fourteenth Amendment
Georgetown Law Journal, 2011Co-Authors: Kurt T. LashAbstract:II. JOHN BINGHAM’S FIRST DRAFT OF THE Fourteenth Amendment . . . 340 A. REPUBLICAN CONSTITUTIONAL THEORY AT THE TIME OF RECONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341 B. THE CONSTITUTIONAL THEORY OF JOHN BINGHAM . . . . . . . . . . . . 346 C. JOHN BINGHAM’S INITIAL DRAFT OF THE Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 D. PRIOR SCHOLARLY TREATMENT OF JOHN BINGHAM’S “BILL OF RIGHTS” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 E. THE CONTEMPORANEOUS DEBATES ON THE CIVIL RIGHTS ACT OF 1866 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 1. The Radical Republican Reading of Corfield and Article IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 2. Moderate and Conservative Views of Corfield and Article IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 F. THE RESPONSE TO JOHN BINGHAM’S INITIAL DRAFT OF THE Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 1. Initial Skirmishes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 2. John Bingham’s Defense of His Initial Draft of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 368 3. John Bingham’s Speech of February 28 . . . . . . . . . . . . . 370
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the origins of the privileges or immunities clause part ii john bingham and the second draft of the Fourteenth Amendment
2010Co-Authors: Kurt T. LashAbstract:Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.This article, the second in an extended investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States ” - a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight Amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.
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the second adoption of the free exercise clause religious exemptions under the Fourteenth Amendment
2008Co-Authors: Kurt T. LashAbstract: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 un-anticipated at the Founding. Contrary to Jeffersonian notions of separate spheres, the nation by the time of Reconstruction had experienced decades of clashes resulting from the overlapping concerns of religion and government. In particular, the suppression of slave religion called into question the government's power to interfere, even indirectly, with legitimate religious exercise. Accordingly, the Privileges or Immunities Clause incorporated a conception of religious liberty vastly different from that intended in 1791 and constitutes a constitutional modification of the original rights of conscience. Religious exemptions from generally applicable laws, considered unnecessary and improbable at the Founding, now became necessary and proper.
Christopher W. Schmidt - One of the best experts on this subject based on the ideXlab platform.
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Originalism and Congressional Power to Enforce the Fourteenth Amendment
2018Co-Authors: Christopher W. SchmidtAbstract:In this Essay I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.
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section 5 s forgotten years congressional power to enforce the Fourteenth Amendment before katzenbach v morgan
Social Science Research Network, 2018Co-Authors: Christopher W. SchmidtAbstract:Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law. This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.
Gerard N. Magliocca - One of the best experts on this subject based on the ideXlab platform.
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Amnesty and Section Three of the Fourteenth Amendment
SSRN Electronic Journal, 2020Co-Authors: Gerard N. MaglioccaAbstract:This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights Amendment to the amnesty bill. The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.
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american founding son john bingham and the invention of the Fourteenth Amendment
2013Co-Authors: Gerard N. MaglioccaAbstract:Contents Acknowledgments ix Introduction: Measuring a Man 1 1. Group Think 5 2. Franklin College 11 3. Lawyer and Whig 20 4. Republican Congressman 39 5. And the War Came 66 6. The Trial of the Century 89 7. The Fourteenth Amendment 108 8. Reconstruction and Impeachment 128 9. Farewell to Washington 154 10. Ambassador 167 11. Obscurity 178 Conclusion: Legacy 185 Appendix: The Reconstruction Amendments 189 Notes 191 Bibliography 277 Index 285 About the Author 294
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introduction chapter 1 american founding son john bingham and the invention of the Fourteenth Amendment
Social Science Research Network, 2013Co-Authors: Gerard N. MaglioccaAbstract:This is an excerpt of my biography of John A. Bingham, the principal drafter of Section One of the Fourteenth Amendment, which will be published by NYU Press in September 2013. The excerpt includes the Introduction and Chapter One.
Steven G. Calabresi - One of the best experts on this subject based on the ideXlab platform.
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on liberty and the Fourteenth Amendment the original understanding of the lockean natural rights guarantees
Texas Law Review, 2015Co-Authors: Steven G. Calabresi, Sofia VickeryAbstract:The debate as to what unenumerated rights, if any, are protected by the Constitution is directly relevant to the most controversial issues in constitutional law today from gay marriage, to gun-control measures, to substance-control regulation, to specific personal liberties, and finally to property regulation, to name just a few. Much of the unenumerated rights debate centers on the U.S. Supreme Court's substantive Due Process Clause case law interpreting the Fourteenth Amendment. These cases address the question of which specific rights are implicated by the protection of life, liberty, and property in the Due Process Clause of the Fourteenth Amendment. Some Justices on the U.S. Supreme Court have written or joined opinions that argue that the answer to this question can be found by looking for rights that are deeply rooted in American history and tradition at the most specific level of generality available. State constitutional case law from 1776 up to 1868 is thus potentially of great relevance to understanding American history and tradition because by 1868, the year the Fourteenth Amendment was ratified, two-thirds of the existing state constitutions contained what we refer to as "Lockean Natural Rights Guarantees," provisions protecting life, liberty, and property and guaranteeing inalienable, natural, or inherent rights of an unenumerated rights type. In this Article, we identify and exhaustively analyze nearly a century of state case law from the time of the Founding until 1868, in which state courts interpret and apply state constitutional Lockean Natural Rights Guarantees to an enormous variety of issues. From this robust body of state constitutional case law, we conclude that the Lockean Natural Rights Guarantees in most state constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority-group members living in the northern states. At the same time, with respect to property regulation, state courts struggled to give concrete meaning to the Lockean Natural Rights Guarantees in their state constitutions, and while not discounting the possibility that some regulations could violate the Guarantees, the state courts generally deferred to the legislature. This evidence suggests that "liberty," in the context of the Fourteenth Amendment, is best understood broadly to encompass natural rights and to require that civil and political rights be extended to minorities, a finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Natural Rights Guarantees and inconsistent rulings in many areas also suggest that determining which specific rights are implicated by the protection of liberty posed the same challenge to state courts between 1776 and 1868 that present courts face today, and that the quest to identify unenumerated rights that are deeply rooted in American history and tradition is itself somewhat quixotic. Language: en
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On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Provisos
SSRN Electronic Journal, 2014Co-Authors: Steven G. Calabresi, Sofia M. VickeryAbstract:The debate as to what unenumerated rights, if any, are protected by the Constitution is directly relevant to the most controversial issues in constitutional law today — from gay marriage, to gun control measures, to substance control regulation, to specific personal liberties, and finally to property regulation to name just a few. Much of the unenumerated rights debate centers on the U.S. Supreme Court’s substantive due process clause caselaw interpreting the Fourteenth Amendment. These cases address the question of which specific rights are implicated by the protection of life, liberty, and property in the Due Process Clause of the Fourteenth Amendment? Some justices on the U.S. Supreme Court have written or joined opinions that argue that the answer to this question can be found by looking for rights that are deeply rooted in American history and tradition at the most specific level of generality available. State constitutional case law from 1776 up to 1868 when the Fourteenth Amendment was ratified is thus potentially of great relevance to understanding American history and tradition, because by 1868, the year the Fourteenth Amendment was ratified, two-thirds of the existing State constitutions contained what we refer to as “Lockean Provisos,” provisions protecting life, liberty, and property and guaranteeing inalienable, natural or inherent rights of an unenumerated rights type. In this Article, we identify and exhaustively analyze nearly a century of State case law, from the time of the Founding until 1868, in which State courts interpret and apply State constitutional Lockean Provisos to an enormous variety of issues. From this robust body of State constitutional case law, we conclude that the Lockean Provisos in most State constitutions had great significance with respect to the abolition of slavery and the extension of civil and political rights to individuals and minority group members living in the Northern States. At the same time, with respect to property regulation, State courts struggled to give concrete meaning to the Lockean Provisos in their State constitutions, and while not discounting the possibility that some regulations could violate the Proviso, the State courts generally deferred to the legislature. This evidence suggests that “liberty,” in the context of the Fourteenth Amendment, is best understood broadly to encompass natural rights and to require that civil and political rights be extended to minorities, a finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Provisos and inconsistent rulings in many areas also suggests that determining which specific rights are implicated by the protection of “liberty” posed the same challenge to State courts between 1776 and 1868 that present courts face today and that the quest to identify unenumerated rights that are deeply rooted in American history and tradition is itself somewhat quixotic.
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individual rights under state constitutions when the Fourteenth Amendment was ratified in 1868 what rights are deeply rooted in american history and tradition
Texas Law Review, 2008Co-Authors: Steven G. Calabresi, Sarah E AgudoAbstract: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 Glucks berg thus adopted the approach to unenumerated rights advocated by Justice Antonin Scalia5 in Michael H. v. Gerald D. Scalia argued for the protection of only those unenumerated 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 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 Frankfurter11) or that are implicit in the concept of ordered liberty (Justice Cardozo12 and the second Justice Harlan13). 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 protected 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 answered 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 fundamental privileges or immunities were protected by Article IV, Section Two of the Constitution in his celebrated but vacuous opinion in Corfield v. …
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individual rights under state constitutions when the Fourteenth Amendment was ratified in 1868 what rights are deeply rooted in american history and tradition
2008Co-Authors: Steven G. Calabresi, Sarah E AgudoAbstract:A consistent theme of the U.S. Supreme Court's substantive due process case law over the last thirty years has been that, at a bare minimum, rights that are deeply rooted in history and tradition are constitutionally protected by the Fourteenth Amendment against state infringement. Some justices think the Fourteenth Amendment protects newer unenumerated rights as well, but all the justices including Scalia and Thomas agree that it protects unenumerated rights that are deeply rooted in history and tradition. Given this, we thought it would be valuable to do a survey of exactly what rights were protected under state constitutions in 1868 when the Fourteenth Amendment was ratified. We thus do a nose-count of rights protected by the thirty-seven state constitutions in 1868. We found that almost all of the rights in the federal Bill of Rights were also recognized as being fundamental rights by state constitutions in 1868. We think this finding is significant because it may suggest that the incorporation of the rights in the federal Bill of Rights on the ground that they were fundamental rights protected as a matter of Fourteenth Amendment substantive due process was correct. We found in addition that several provisions of the federal Bill of Rights that have not been incorporated arguably ought to have been incorporated. Our evidence suggests that the Seventh Amendment right to civil jury trial and the right to indictment by a Grand Jury probably ought to be incorporated. Perhaps surprisingly, the case for incorporation of the Second Amendment right to keep and bear arms as an individual right is a closer question.We also found that state constitutions protected a number of rights as being fundamental in 1868 that are not in the federal Bill of Rights. The most important such right is the right to a public school education, which was recognized in some form in thirty-six out of thirty-seven state constitutions in 1868. This provides new and never before published evidence of why Brown v. Board of Education was correctly decided. This finding alone is an incredibly striking one. In addition, it turns out that an Article V consensus of more than three-quarters of the state bills of rights in 1868 recognized either that there were natural law rights that were not enumerated in the state constitutions which were just as important as the enumerated rights or that the enumeration of specific rights in state constitutions ought not to be construed to deny or disparage other retained by the people. This is an exceptionally important finding because it suggests that if one looks at what rights are deeply rooted in history and tradition in state positive constitutional law in 1868, it turns out that as a matter of state positive law at that time the existence of unenumerated rights was taken for granted. This means that the whole effort of cabining substantive due process by looking at history and tradition may well be circular since history and tradition just point us back to natural law as it was understood in 1868.
Sarah E Agudo - One of the best experts on this subject based on the ideXlab platform.
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individual rights under state constitutions when the Fourteenth Amendment was ratified in 1868 what rights are deeply rooted in american history and tradition
Texas Law Review, 2008Co-Authors: Steven G. Calabresi, Sarah E AgudoAbstract: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 Glucks berg thus adopted the approach to unenumerated rights advocated by Justice Antonin Scalia5 in Michael H. v. Gerald D. Scalia argued for the protection of only those unenumerated 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 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 Frankfurter11) or that are implicit in the concept of ordered liberty (Justice Cardozo12 and the second Justice Harlan13). 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 protected 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 answered 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 fundamental privileges or immunities were protected by Article IV, Section Two of the Constitution in his celebrated but vacuous opinion in Corfield v. …
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individual rights under state constitutions when the Fourteenth Amendment was ratified in 1868 what rights are deeply rooted in american history and tradition
2008Co-Authors: Steven G. Calabresi, Sarah E AgudoAbstract:A consistent theme of the U.S. Supreme Court's substantive due process case law over the last thirty years has been that, at a bare minimum, rights that are deeply rooted in history and tradition are constitutionally protected by the Fourteenth Amendment against state infringement. Some justices think the Fourteenth Amendment protects newer unenumerated rights as well, but all the justices including Scalia and Thomas agree that it protects unenumerated rights that are deeply rooted in history and tradition. Given this, we thought it would be valuable to do a survey of exactly what rights were protected under state constitutions in 1868 when the Fourteenth Amendment was ratified. We thus do a nose-count of rights protected by the thirty-seven state constitutions in 1868. We found that almost all of the rights in the federal Bill of Rights were also recognized as being fundamental rights by state constitutions in 1868. We think this finding is significant because it may suggest that the incorporation of the rights in the federal Bill of Rights on the ground that they were fundamental rights protected as a matter of Fourteenth Amendment substantive due process was correct. We found in addition that several provisions of the federal Bill of Rights that have not been incorporated arguably ought to have been incorporated. Our evidence suggests that the Seventh Amendment right to civil jury trial and the right to indictment by a Grand Jury probably ought to be incorporated. Perhaps surprisingly, the case for incorporation of the Second Amendment right to keep and bear arms as an individual right is a closer question.We also found that state constitutions protected a number of rights as being fundamental in 1868 that are not in the federal Bill of Rights. The most important such right is the right to a public school education, which was recognized in some form in thirty-six out of thirty-seven state constitutions in 1868. This provides new and never before published evidence of why Brown v. Board of Education was correctly decided. This finding alone is an incredibly striking one. In addition, it turns out that an Article V consensus of more than three-quarters of the state bills of rights in 1868 recognized either that there were natural law rights that were not enumerated in the state constitutions which were just as important as the enumerated rights or that the enumeration of specific rights in state constitutions ought not to be construed to deny or disparage other retained by the people. This is an exceptionally important finding because it suggests that if one looks at what rights are deeply rooted in history and tradition in state positive constitutional law in 1868, it turns out that as a matter of state positive law at that time the existence of unenumerated rights was taken for granted. This means that the whole effort of cabining substantive due process by looking at history and tradition may well be circular since history and tradition just point us back to natural law as it was understood in 1868.
