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

Volumn 87, Issue 1, 2008, Pages 7-120

  Calabresi, Steven G ^a   Agudo, Sarah E ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 58049156509     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (504)

1. See Griswold v. Connecticut, 381 U.S. 479, 509-10 (1965) (Black, I, 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."); ROBERT 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 UTAH 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 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).
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 JOHN 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 Corfieldv.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.
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).
34. Steven G. Calabresi, Lawrence, the Fourteenth Amendment, and the Supreme Court's Reliance on Foreign Constitutional Law: An Originalist Reappraisal, 65 OHIO ST. L.J. 1097, 1102 (2004).
35. 550 U.S. 124 (2007).
36. See BORK, 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 ETHAN 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).
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).
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.
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 MICH. 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., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 20-22, 32-2, 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).
45. This sometimes led to the use of constitutions that were ratified much earlier than the others. See, e.g., CONN. 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.
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.
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))).
51. The full appendix is on file with the authors and with the Texas Law Review. See supra note 47.
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. ENCYCLOPEDIA OF RELIGIOUS FREEDOM 115-16 (Catharine Cookson ed., 2003).
54. CONSTITUTIONAL 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 CAL. 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 LAWRENCE 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.
59. E.G., ME. CONST. of 1819, art. I, § 3.
60. E.g., MICH. 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 ARIZ. 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.").
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. MASS. 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. CONN. 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. CONN. 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., ALA. CONST. of 1867, art. I, § 4.
70. U.S. CONST. amend. I.
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." NOAH 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)." THE BARNHART DICTIONARY OF ETYMOLOGY 1245 (Robert K. Barnhart & Sol Steinmetz eds., 1988).
72. E.g., CONN. 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." NOAH 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. Bamhart & 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 Boeme 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).
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 DEPAUL 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., KY. 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] 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., GA. CONST, of 1868, pmbl.
86. E.g., MASS. 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., ILL. CONST, of 1848, art. XIII, § 4.
89. MISS. CONST, of 1868, art. XII, § 3 ("No person who denies the existence of a Supreme Being shall hold any office in this State."); see PA. 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 . . ..")
91. 435 U.S. 618, 629(1978).
92. 367 U.S. 488,495(1961).
93. E.g., IND. 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.").
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., CONN. 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., DEL. 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., GA. CONST, of 1868, pmbl. ("acknowledging and invoking the guidance of Almighty God, the author of all good government").
101. See, e.g., ME. CONST, of 1819, pmbl. (referencing "acknowledging, with grateful hearts, the goodness of the Sovereign Ruler of the Universe").
102. E.g., MD. CONST, of 1867, Declaration of Rights, art. 39 (referencing "the attestation of the Divine Being").
103. E.g., MASS. CONST, of 1780, pmbl. (referencing "the goodness of the great Legislator of the universe").
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.RJ. Res. 1, 44th Cong. (1875), 4 CONG. 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 CONG. 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.
108. E.g., OR. CONST, of 1857, art. I, § 7.
109. E.g., TEX. CONST, of 1868, art. I, § 4.
110. MICH. CONST, of 1850, art. VI, § 34.
111. For an in-depth history of the First Amendment, see generally ZECHARIAH 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.,, OR. CONST, of 1857, art. I, § 8.
114. MO. CONST, of 1865, art. I, § 27.
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 LEONARD 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.
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. VA. 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., CAL. CONST, of 1849, art. I, § 10.
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., ME. CONST, of 1819, art. I, § 2.
129. See, e.g., KAN. 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 COLUM. L. REV. 457, 458 (1994).
131. VA. CONST, of 1864, Bill of Rights, art. I (incorporating VA. CONST, of 1776, Declaration of Rights, §2).
132. MASS. CONST, of 1780, pt. 1, arts. V, VIII; VA. CONST, of 1864, Bill of Rights, art. I (incorporating VA. CONST, of 1776, Declaration of Rights, §§2, 5).
133. MASS. CONST, of 1780, pt. 1, art. V; VA. CONST, of 1864, Bill of Rights, art. I (incorporating VA. CONST, of 1776, Declaration of Rights, § 2).
134. See MASS. 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 CHAFEE, supra note 111, at 21 (arguing that "the First Amendment was ... intended to wipe out the common law of sedition").
136. See 14 THOMAS 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).
137. FLA. CONST, of 1868, art. I, § 10.
138. See, e.g., NEB. 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., LA. CONST, of 1868, tit. VI, art. 103.
143. E.g., DEL. CONST, of 1831, art. I, § 3 ("All elections shall be free and equal.").
144. MO. CONST, of 1865, art. I, § 14 (stating that "all elections ought to be free and open.").
145. MD. 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., NEV. CONST, of 1864, art. I, § 13.
149. E.g., FLA. CONST, of 1868, art. I, § 3.
150. See LA. 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. KY. CONST, of 1850, art. XIII, §2.
152. TENN. CONST, of 1834, art. I, §2.
153. E.g., S.C. CONST, of 1868, art. I, § 4.
154. See CHRISTOPHER 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 capital, 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. AMAR, 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).
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 WM. & 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., VT. CONST, of 1793, ch. I, art. XVI.
162. See Andrew J. McClurg, Child Access Prevention Laws: A Common Sense Approach to Gun Control, 18 ST. 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., VT. 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 TENN. 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 GA. 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."); KY. 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.").
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, Slate Constitutional Rights of Self-Defense and Defense of Property, 11 TEX. 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."); ERWIN 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.
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, NEW REPUBLIC, Aug. 27, 2008, at 32; see also J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. 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 (citingDuncan, 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 MICH. 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 STAN. 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).
179. E.g., ALA. CONST, of 1867, art. I, § 29.
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., IND. CONST, of 1851, art. XII, § 6.
184. E.g., Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 212 (1983).
185. E.g., KY. CONST, of 1850, art. XIII, § 26.
186. E.g., DEL. CONST, of 1831, art. I, § 17.
187. E.g., TENN. 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., NEV. CONST, of 1864, art. I, § 12.
189. William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL. 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. ROBERT MIDDLEKAUF, THE GLORIOUS CAUSE: THE AMERICAN REVOLUTION, 1763-1789, at 230-31 (C. Vann Woodward ed., 1982).
190. E.g., IOWA 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 ....").
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., IOWA CONST, of 1857, art. I, § 8.
196. VT. 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.").
197. 302 U.S. 319 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969).
198. Id. at 328.
199. E.g., MISS. 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. DEL. CONST, of 1831, art. I, § 13.
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., MD. 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 HUMAN 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 selfincrimination, it is seldom exercised because all defendants are questioned by the court and "[sjilence is not a realistic option").
208. 287 U.S. 45 (1932).
209. Id. at 67.
210. ILL. CONST, of 1848, art. XIII, §9.
211. GA. CONST, of 1868,011.1, §7.
212. E.g., W. VA. CONST, of 1861, art. II, § 8.
213. E.g., PA. CONST, of 1838, art. IX, § 9.
214. E.g., MASS. CONST, of 1780, pt. 1, art. XII.
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., ARK. CONST, of 1868, art. I, § 8.
219. 386 U.S. 213, 223 (1967).
220. U.S. CONST, amend. VI.
221. E.g., ARK. 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 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. WIS. 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).
230. E.g., WIS. CONST, of 1848, art. I, § 7.
231. U.S. CONST, amend. VI.
232. E.g., PA. CONST, of 1838, art. IX, § 9.
233. 333 U.S. 257, 273 (1948).
234. N.C. CONST, of 1868, art. I, § 18.
235. R.I. CONST, of 1842, art. I, § 14.
236. See ALA. 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...."); CONN. CONST, of 1818, art. I, § 10 ("No person shall be arrested, detained, or punished, except in cases clearly warranted by law.").
237. U.S. CONST, amend. V.
238. Akhil Reed Amar, 2000 Daniel J. Meador Lecture: Hugo Black and the Hall of Fame, in 53 ALA. 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 MICH. 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).
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"); BORK, 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. VA. CONST, of 1864, Bill of Rights, art. I (incorporating VA. CONST, of 1776, Declaration of Rights, § 8).
246. GA. 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. MINN. 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.").
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).
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. BLACK'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., ILL. CONST, of 1848, art. XIII, § 17.
259. U.S. CONST, art. I, § 10, cl. 1.
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., TEX. 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, I, 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. BLACK'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.
268. See, e.g., U.S. CONST, art. III, § 3, cl. 2.
269. BLACK'S LAW DICTIONARY 371 (8th ed. 2004).
270. E.g., IND. 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.").
273. ARK. CONST. of 1868, art. I, § 11.
274. LA. 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 WASH. & 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).
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); CHEMERINSK,Y, 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., ARK. CONST. of 1868, art. I, § 15.
282. ALA. 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. GA. CONST. of 1868, art. I, §20.
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 CHARLES 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 MO. 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]").
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 IOWA 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., OHIO CONST. of 1851, art. I, § 16.
296. 5 U.S. (lCranch) 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").
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.
303. KY. CONST. of 1850, art. XIII, §3.
304. Id.
305. E.g., DEL. CONST. of 1831, art. I, § 15.
306. 391 U.S. 145, 149-50(1968).
307. E.g., N.J. CONST. of 1844, art. I, § 8.
308. VT. 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. OR. 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 TUL. 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 ALA. 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").
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 WM. & 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).
318. E.g., ARK. CONST. of 1868, art. I, § 9.
319. N.C. CONST. of 1868, art. I, § 12.
320. IND. 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 OR. L. REV. 101, 119-20 (1931) (describing the historical abuse of prosecutions by information).
322. E.g., DEL. CONST. of 1831, art. I, § 8.
323. See LA. CONST. of 1868, tit. I, art. 6 ("Prosecutions shall be by indictment or information."); TEX. 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., MD. 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., ILL. CONST. of 1848, art. XIII, § 18.
328. MASS. CONST. of 1780, pt. 1, art. XXIX.
329. E.g., IND. CONST. of 1851, art. I, § 19.
330. 356 U.S. 86, 101 (1958).
331. E.g., IOWA CONST. of 1857, art. I, § 17.
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., IOWA 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).
337. Baze v. Rees, 128 S. Ct. 1520, 1534-36 (2008).
338. E.g., MO. CONST.of 1865, art. I, § 21.
339. VA. 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., TEX. 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.
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., TENN. CONST. of 1834, art. I, § 13.
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 VT. 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. MD. 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. GA. CONST. of 1868, art. I, § 22 ("Whipping, as a punishment for crime, is prohibited.").
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. ME. 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."); TENN. 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. ALA. 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.. . .").
359. Kg., N.Y. CONST. of 1846, art. I, § 5 (emphasis added).
360. U.S. CONST. amend. IX.
361. See, e.g., DANIEL 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
363. See FARBER, 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 EMORY L.J. 967, 968-69 (1993) (observing that state constitutions, in the late eighteenth and early nineteenth centuries, contained Ninth Amendment analogs).
366. E.g., CAL. CONST. of 1849, art. I, § 1.
367. KY. CONST. of 1850, art. XIII, §3.
368. E.g., WIS. CONST. of 1848, art. I, § 22.
369. E.g., MASS. 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., ME. 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.
372. See, e.g., Lash, supra note 362, at 715 (chronicling the various interpretations of the Ninth Amendment by the Supreme Court).
373. AMAR, supra note 44, at 280.
374. E.g., MD. 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.").
375. See Michael W. McConnell, Remarks at the Panel on Originalism and Unenumerated Constitutional Rights, in ORIGINALISM: 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).
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., PA. CONST, of 1838, art. IX, § 25.
383. E.g., S.C. CONST, of 1868, art. I, § 35.
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 CAL. 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.").
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. CONN. 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. MISS. CONST, of 1868, art. I, § 21.
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 ERWIN 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. CHEMERINSKY, supra note 405, at 474.
408. See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE 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 DAVID 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.
411. Id. at 1448-50.
412. E.g., OR. 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).
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., CHESTER 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. Eg., S.C. CONST, of 1868, art. I, § 39.
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 often 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 KY. 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., FLA. CONST, of 1868, art. I, § 12.
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 HARV. L. REV. 193, 193 (1890).
428. See JOHN 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 Million Constitution: The Supreme Court's Repudiation of Immorality as a Ground of Criminal Punishment, 18 NOTRE 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).
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., MINN. 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).
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., WISC. CONST, of 1848, art. XIII, § 2.
438. E.g., id.
439. See generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
440. E.g., OHIO 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., VA. 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 ....").
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. SCHWARZ, 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 VAND. 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 HASTINGS 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 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., PA. CONST, of 1838, art. IX, § 12.
451. E.g., LA. CONST, of 1868, tit. III, art. 65.
452. See CONCISE 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., OR. CONST, of 1857, art. I, § 33.
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., CAL. CONST, of 1849, art. IV, § 12.
457. E.g., KY. CONST, of 1850, art. II, § 25.
458. E.g., TEX. CONST, of 1868, art. I, § 23.
459. VA. 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 CAL. L. REV. 293, 297-98 (2002).
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.").
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. MISS. 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 ... .").
471. See Michael W. McConnell, The Originalist Case for Brown v. Board of Education, 19 HARV. 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 VA. 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 VA. L. REV. 1937, 1947 (1995) ("[A] substantial majority of the Congress... took the position that public school segregation violates the Fourteenth Amendment").
472. MO. CONST, of 1865, art. IX, § 2 ("Separate schools may be established for children of African descent.").
473. See LA. 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. VT. CONST, of 1793, ch. II, § 41 (emphasis added).
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 NW. 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., OHIO CONST, of 1851, art. VII, § 1.
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. LA. 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 YALE 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 WASH. 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").
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).
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 AMAR, 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.
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.
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).
503. 539 U.S. 558, 578 (2003).
504. AMAR, 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").