Calabresi and Agudo on Individual Rights Under State Bills of Rights When the Fourteenth Amendment Was Ratified

Steven G. Calabrasi, Northwestern, and Sarah E. Agudo, Northwestern and Harvard, JFK School of Government, have posted a new article, Individual Rights Under State Bills of Rights When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? It is forthcoming in the Texas Law Review. Here's the abstract:

A consistent theme of the U.S. Supreme Court's substantive due process caselaw 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 bills of rights 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 bills of rights in 1868. We think this finding may be 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 bills of rights 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 bills of rights which were just as important as the enumerated rights or that the enumeration of specific rights in state bills of rights 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.