You May Have More Rights Than the President — or the Supreme Court — Thinks
I’m looking forward to a forthcoming article in the Texas Law Review — how’s that for a sentence I never thought I’d write? The title shows a certain insensitivity to the marketplace: “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?”
As is not often enough the case, the authors (Prof. Steven Calabresi of Northwestern Law School and Prof. Sarah Agudo of that school and the Kennedy School at Harvard) asked a great question, the one in the title. It’s a bit astonishing that no one had asked it before. The reasoning behind the question is straightforward: Since the Due Process Clause of the Fourteenth Amendment (adopted in 1868) imposed on the states those rights embodied in the notion of “due process of law” in 1868, what were the individual rights that state constitutions recognized in 1868?
After surveying the state constitutions of the era, the authors developed intriguing answers. First, they found that all of the personal rights that the Supreme Court has applied to states through the “incorporation” doctrine already were mostly guaranteed in state constitutions. They also found that the right to grand jury indictment (5th Amendment) and to a civil jury (7th) amendment, also should be incorporated. The Second Amendment (guns!) is not so clear.
They also found some fascinating facts: 36 out of 37 state constitutions guaranteed a publicly-funded education in 1868. So should that be part of the Due Process guarantee of the 14th Amendment?
Academic work usually takes a few years, even decades, to filter into court decisions, but this analysis strikes me as particularly potent. Indeed, it takes the “original intent” mantra of the most conservative legal analysts and turns it against them: after all, the original intent around the Fourteenth Amendment was profoundly in favor of individual rights.
Because I’m not an academic, I cannot read the full article yet, which is summarized at the Social Science Research Network . Soon, even non-academics will be able to read it at the site of the Texas Law Review.
I’m actually looking forward!