On Liberty and the Fourteenth Amendment

154 Pages·2015·28.31 MB·English

On Liberty and the Fourteenth Amendment:
The Original Understanding of the Lockean
Natural Rights Guarantees
By Steven G. Calabresi* & Sofía M. Vickery**
The debate as to what unenumerated rights, if any, are protected by the
Constitution is directly relevant to the most controversial issues in constitutional
law today—from gay marriage, to gun-control measures, to substance-control
regulation, to specific personal liberties, and finally to property regulation, to
name just a few. Much of the unenumerated rights debate centers on the U.S.
Supreme Court’s substantive Due Process Clause case law interpreting the
Fourteenth Amendment. These cases address the question of which specific
rights are implicated by the protection of life, liberty, and property in the Due
Process Clause of the Fourteenth Amendment. Some Justices on the U.S.
Supreme Court have written or joined opinions that argue that the answer to this
question can be found by looking for rights that are deeply rooted in American
history and tradition at the most specific level of generality available. State
constitutional case law from 1776 up to 1868 is thus potentially of great
relevance to understanding American history and tradition because by 1868, the
year the Fourteenth Amendment was ratified, two-thirds of the existing state
constitutions contained what we refer to as “Lockean Natural Rights
Guarantees,” provisions protecting life, liberty, and property and guaranteeing
inalienable, natural, or inherent rights of an unenumerated rights type. In this
Article, we identify and exhaustively analyze nearly a century of state case law
from the time of the Founding until 1868, in which state courts interpret and
apply state constitutional Lockean Natural Rights Guarantees to an enormous
variety of issues. From this robust body of state constitutional case law, we
conclude that the Lockean Natural Rights Guarantees in most state constitutions
had great significance with respect to the abolition of slavery and the extension
of civil and political rights to individuals and minority-group members living in
the northern states. At the same time, with respect to property regulation, state
courts struggled to give concrete meaning to the Lockean Natural Rights
Guarantees in their state constitutions, and while not discounting the possibility
that some regulations could violate the Guarantees, the state courts generally
deferred to the legislature. This evidence suggests that “liberty,” in the context
of the Fourteenth Amendment, is best understood broadly to encompass natural
rights and to require that civil and political rights be extended to minorities, a

* Professor of Law, Northwestern University School of Law. Visiting Professor of Political
Science, 2010–2018, Brown University. Professor Calabresi is especially grateful to Dean Dan
Rodriguez of the Northwestern University School of Law and to John Tomasi, the head of the
Political Theory Project at Brown University, who have made possible the unique working
environment in which we were able to write this law review Article. Thanks also to Professors John
O. McGinnis and Jim Pfander for comments on earlier drafts of this Article.
** Class of 2011, Northwestern University School of Law.
1300 Texas Law Review [Vol. 93:1299
finding of particular relevance to the debate on gay marriage. However, the
range of issues potentially implicated by the Lockean Natural Rights Guarantees
and inconsistent rulings in many areas also suggest that determining which
specific rights are implicated by the protection of liberty posed the same
challenge to state courts between 1776 and 1868 that present courts face today,
and that the quest to identify unenumerated rights that are deeply rooted in
American history and tradition is itself somewhat quixotic.
I.  INTRODUCTION ................................................................................. 1301 
II.  HISTORICAL ORIGINS AND DEVELOPMENT OF THE LOCKEAN
NATURAL RIGHTS GUARANTEES ...................................................... 1312 
A.  Framing of the Original Lockean Natural Rights Guarantee 1313 
B.  Spread of the Lockean Natural Rights Guarantees and Their
Impact ................................................................................... 1316 
C.  Political Theory Debates and Amendments to the
Guarantees ............................................................................ 1321 
III. SLAVERY ........................................................................................... 1324 
A.  Slavery Unconstitutional ....................................................... 1327 
1.  Vermont Constitution: Textual Link Between Lockean
Natural Rights Guarantee and Slavery Prohibition ........ 1327 
2.  Massachusetts: Lockean Natural Rights Guarantee
Alone to Abolish Slavery ................................................. 1328 
3.  Indiana, Illinois, and Ohio: Lockean Natural Rights
Guarantees to Extend Existing Slavery Prohibitions ...... 1335 
B.  Slavery Constitutional ........................................................... 1344 
IV. LOCKEAN NATURAL RIGHTS GUARANTEES AND THE RIGHT TO A
WRIT OF HABEAS CORPUS ................................................................ 1353 
V.  LOCKEAN NATURAL RIGHTS GUARANTEES AND MINORITY
RIGHTS .............................................................................................. 1357 
VI. CIVIL AND POLITICAL RIGHTS .......................................................... 1362 
A.  Freedom of Religion ............................................................. 1362 
B.  Right of Marriage .................................................................. 1366 
C.  Involuntary Confinement and Transportation of the Poor .... 1368 
D.  Retroactive Legislation ......................................................... 1370 
E.  Statutes Imposing or Excusing Liability ............................... 1372 
F.  Miscellaneous Civil and Political Rights .............................. 1374 
VII. RIGHTS RELATED TO LEGAL PROCEDURES ..................................... 1381 
A.  The Right of Appeal .............................................................. 1382 
B.  Legislative Interference with Final Judgments ..................... 1385 
C.  Procedural Rights During Legal Proceedings ....................... 1387 
VIII. LIQUOR LAWS ................................................................................ 1391 
A.  Liquor Laws Unconstitutional .............................................. 1391 
B.  Liquor Laws Constitutional .................................................. 1395 
IX. OTHER BUSINESS REGULATIONS ...................................................... 1404 
A.  Sabbath Laws ........................................................................ 1404 
B.  Test Oaths ............................................................................. 1409 
C.  Miscellaneous Regulations ................................................... 1413 
X.  PROPERTY TRANSFER REGULATIONS ............................................... 1418
2015] Lockean Natural Rights Guarantees 1301
A.  Regulation of Property Transfers .......................................... 1418 
B.  Creditor–Debtor Property Regulations ................................. 1423 
XI. LOCKEAN NATURAL RIGHTS GUARANTEES AND POWERS OF
TAXATION ......................................................................................... 1425 
A.  General Taxation Schemes ................................................... 1425 
B.  Taxation for Railroads .......................................................... 1429 
C.  Taxation for Enlistment Bounties ......................................... 1434 
XII. CONCLUSION .................................................................................... 1436 

I. Introduction
Over the last fifty years, some of the most widely debated Supreme
Court decisions have been those which spoke of the presence or absence of
unenumerated rights. This has been true of the Supreme Court’s decisions in
Griswold v. Connecticut;1 in Roe v. Wade;2 in Lawrence v. Texas;3 and, most
recently, in United States v. Windsor.4 Today, the debate as to exactly what
rights the Constitution protects continues on a wide array of topics including
gay marriage, gun-control legislation, substance-control legislation, and
property regulation.5 Those who claim the Fourteenth Amendment protects
unenumerated rights base their claim either on the doctrine of substantive due
process or, more recently, on the Privileges or Immunities Clause of the
Fourteenth Amendment.6 They claim that some unenumerated rights are
fundamental rights substantively protected by the Due Process Clause or that
they are privileges or immunities of citizenship.7 Many opponents argue that
the Fourteenth Amendment does not protect any rights other than those that
are specifically enumerated either in the Bill of Rights or in other parts of the
Constitution. Other opponents concede that the Fourteenth Amendment
protects unenumerated rights but debate which particular rights are protected.
The Supreme Court Justices opposing the expansion of unenumerated
rights have rallied in recent years around the position that the only
unenumerated, fundamental liberty interests that the Fourteenth Amendment
protects are those that are deeply rooted in the nation’s history and traditions.

1. 381 U.S. 479, 484–86 (1965).
2. 410 U.S. 113, 129, 152–54 (1973).
3. 539 U.S. 558, 562, 564, 575 (2003).
4. 133 S. Ct. 2675, 2693–96 (2013).
5. See, e.g., McDonald v. City of Chi., 561 U.S. 742, 767, 778 (2010) (finding that the Second
Amendment “right to keep and bear arms is fundamental to [the nation’s] scheme of ordered
liberty”); Gonzales v. Raich, 545 U.S. 1, 8 (2005) (analyzing constitutional claims regarding the use
of medical marijuana); Robert J. Krotoszynski, Jr., Fundamental Property Rights, 85 GEO. L.J. 555,
557 (1997) (addressing the “open question” of the status of fundamental property rights); Adam
Liptak, Supreme Court to Decide Marriage Rights for Gay Couples Nationwide, N.Y. TIMES,
Jan. 16, 2015, http://www.nytimes.com/2015/01/17/us/supreme-court-to-decide-whether-gays-
nationwide-can-marry.html, archived at http://perma.cc/KC28-A7Q4 (reporting on the Supreme
Court’s recent grant of certiorari to cases regarding whether gay marriage is a fundamental right).
6. See infra notes 10–12 and accompanying text.
7. See infra notes 10–12 and accompanying text.
1302 Texas Law Review [Vol. 93:1299
Thus, in Washington v. Glucksberg,8 former Chief Justice William Rehnquist
wrote for five Justices that the Due Process Clause of the Fourteenth
Amendment protected only fundamental liberty rights that are “objectively,
deeply rooted in this Nation’s history and tradition.”9 More recently, in
McDonald v. City of Chicago,10 Chief Justice John Roberts and Justices
Antonin Scalia, Anthony Kennedy, and Samuel Alito took the view that
Second Amendment gun rights were protected against state abridgment by
the Fourteenth Amendment because the right to keep and bear arms is deeply
rooted in our nation’s history and tradition.11 These four conservative
advocates of substantive due process received a critical fifth vote from Justice
Clarence Thomas, who wrote that the Privileges or Immunities Clause of the
Fourteenth Amendment protected the right to keep and bear arms but only on
the ground that it was deeply rooted in American history and tradition.12
The endorsement in McDonald of unenumerated liberty rights that are
deeply rooted in history and tradition urgently raises the question of which
rights are rooted deeply in history and tradition. This question is made
especially pressing because one of the five conservative Justices—Justice
Anthony M. Kennedy—has on two occasions taken a more philosophical
approach to the derivation of constitutionally protected liberty rights. Justice
Kennedy wrote of the Due Process Clause’s protection of liberty as a
transcendental concept that includes “the right to define one’s own concept
of existence, of meaning, of the universe, and of the mystery of human life.”13
Justice Kennedy embraced this view in the plurality opinion in Planned
Parenthood of Southeastern Pennsylvania v. Casey14 and in Lawrence v.
Texas, where the Court struck down sodomy laws as violating the right to
privacy even though the existence of those laws is without any doubt deeply
rooted in history and tradition.15 Justice Kennedy seems to have thought in
this case that the Texas law in question was more than a “mere meddlesome
interference[] with the rights of the individual” and that it was an
unreasonable “exercise of the police power” as those phrases are used in
Lochner v. New York.16 That in turn raises a question as to whether Lochner-
style substantive due process is deeply rooted in American history and
tradition and whether unenumerated rights cases like Pierce v. Society of

8. 521 U.S. 702 (1997).
9. Id. at 720–21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality
opinion)) (internal quotation marks omitted).
10. 561 U.S. 742 (2010).
11. Id. at 767.
12. Id. at 806, 822–23 (Thomas, J., concurring in part and concurring in judgment).
13. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 851 (1992) (plurality opinion)) (internal quotation marks omitted).
14. Casey, 505 U.S. at 851.
15. Lawrence, 539 U.S. at 574, 577–79.
16. 198 U.S. 45, 61 (1905); see Lawrence, 539 U.S. at 578–79 (holding that the Texas statute
does not further a legitimate state interest that can justify its restriction on personal liberty).
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Sisters17 and Meyer v. Nebraska18 were correctly decided, as well as Skinner
v. Oklahoma,19 which seems to have quite correctly displaced Buck v. Bell.20
The conundrum over whether the Fourteenth Amendment protects
unenumerated rights is augmented by a survey that Professor Steven
Calabresi and Sarah Agudo did several years ago as to what individual rights
were protected in state bills of rights in 1868 when the Fourteenth
Amendment was finally ratified.21 Professor Calabresi and Ms. Agudo’s
research was relied on by Justice Alito in his plurality opinion in McDonald
v. City of Chicago.22 Professor Calabresi and Ms. Agudo found that in 1868,
twenty-four of the thirty-seven state constitutions existing at that time, nearly
a two-thirds majority, contained provisions guaranteeing inalienable, natural,
or inherent rights of an unenumerated rights type.23 Thus, in 1868,
approximately 67% of all Americans then living resided in states that
constitutionally protected unenumerated individual liberty rights.24
Throughout this Article, we use the term “Lockean Natural Rights
Guarantees” (or “the Guarantees”) to refer to these unenumerated individual-
liberty-rights guarantees.25
Our goal in this Article is to uncover the original understanding of the
Lockean Natural Rights Guarantees urgently, in 1868, when the Fourteenth
Amendment was adopted. Were the Lockean Natural Rights Guarantees

17. 268 U.S. 510 (1925).
18. 262 U.S. 390 (1923).
19. 316 U.S. 535 (1942).
20. 274 U.S. 200 (1927); see Skinner, 316 U.S. at 538 (declining to distinguish the statute at
issue from Buck v. Bell under due process and, instead, holding that the statute failed the
requirements of the Equal Protection Clause).
21. Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When
the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American
History and Tradition?, 87 TEXAS L. REV. 7, 15–18 (2008). The understanding of unenumerated
rights in the states is especially relevant to the meaning of the Fourteenth Amendment if one accepts
the premise that “the original intent relevant to constitutional discourse” is the intent “of the parties
to the constitutional compact—the states as political entities.” H. Jefferson Powell, The Original
Understanding of Original Intent, 98 HARV. L. REV. 885, 888 (1985). But see id. at 945–48
(explaining that by the outbreak of the Civil War, the understanding of “intent” shifted to focusing
on the personal intent of individual Framers).
22. 561 U.S. 742, 777 & n.26 (2010).
23. See Calabresi & Agudo, supra note 21, at 88 (listing twenty-seven of the thirty-seven state
constitutions as including provisions guaranteeing unenumerated rights). That article included three
additional states on the list: Connecticut, Rhode Island, and Texas. Id. at 20 & nn.48–49. However,
as explained infra, the Connecticut, Rhode Island, and Texas Guarantees were so atypical that it is
not fully accurate to group them with the twenty-four true Lockean Natural Rights Guarantees.
24. The 67% reflects the population that resided in the twenty-four states with true Lockean
Natural Rights Guarantees as of the 1870 census. This percentage was calculated from data
available from the U.S. CENSUS BUREAU, POPULATION: 1790 TO 1990, at 27 tbl.16, available at
http://www.census.gov/population/www/censusdata/files/table-16.pdf, archived at http://perma.cc
/T6UJ-4FLW.
25. See infra Appendix A, for a chart of the twenty-four Lockean Natural Rights Guarantees
and three quasi-Guarantees existing in 1868.
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understood broadly enough to support arguments for the existence of
something like the right to marry a partner of one’s own choosing or the
personal liberties at issue in Pierce, Meyer, or Skinner? Or were the Lockean
Natural Rights Guarantees essentially empty rhetorical flourishes that meant
little or nothing? Our conclusion after exhaustively studying the case law
applying the Lockean Natural Rights Guarantees from the founding of the
Republic until 1868 is that the Guarantees protected rights grounded in
natural law, and in the Northern States, the Guarantees required that civil and
political rights be extended to minority group members, a particularly
relevant finding if one accepts the premise that, in 1868, the Fourteenth
Amendment reflected the views of the Northern States. The Guarantees also
suggested that a broad reading ought to be given to enumerated rights and to
unenumerated, but deeply rooted, liberties enjoyed by Englishmen under that
country’s ancient constitution, which predated the Norman Conquest. At the
same time, particularly with respect to property regulation, state courts
struggled to give concrete meaning to the Lockean Natural Rights
Guarantees, and while not discounting the possibility that some regulations
could violate the Guarantees, the state courts generally deferred to the
legislature. In this respect, the Lockean Natural Rights Guarantees were
remarkably similar to Justice Kennedy’s so-called “sweet mystery of life”
language in Lawrence v. Texas,26 which rightly or wrongly has been ignored
by lower federal and state courts in post-Lawrence substantive due process
cases.27 As Professor Calabresi has previously argued, this “sweet mystery
of life” language is unintelligible and thus unenforceable.28 The same thing
may be true of the grandly phrased Lockean Natural Rights Guarantees, at
least as they are applied to the protection of property.
The twenty-four Lockean Natural Rights Guarantees existing in 1868
used very similar language in protecting enumerated and unenumerated
individual rights. The typical Lockean Natural Rights Guarantee included
three parts or elements. First, it affirmed the freedom or equality of men (or
both), stating that all men are born “free and equal” or “free and
independent.”29 Sir Edward Coke might well have said that this was an
inherent right of Englishmen, and Lord Mansfield held as much in Somerset’s
Case30 in 1772, a case holding that slavery was illegal in England because

26. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“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.”
(quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)); id. at 588 (Scalia, J.,
dissenting).
27. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 MICH. L. REV.
1517, 1527 (2008).
28. See id. at 1518 (arguing that the Lawrence opinion is “void for vagueness”).
29. E.g., FLA. CONST. of 1868, declaration of rights, § 1 (using the “free and equal” language);
ME. CONST. art. 1, § 1 (amended 1988) (using the “free and independent” language); see also infra
Appendix A.
30. Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.); Lofft 1.
2015] Lockean Natural Rights Guarantees 1305
liberty was the natural state of man and that only express positive law could
deprive a person of his freedom.31 There being no express, positive law in
England that authorized the holding of a slave on board a ship in the River
Thames in London, the slave was declared free under the common law in a
writ of habeas corpus.32
Second, the typical Lockean Natural Rights Guarantee guaranteed
inalienable, inherent, or natural rights. Sir Edward Coke would have
identified such rights with the common law of England and with the ancient
constitution, which had produced it. For this reason, Coke held that royal
grants of monopolies, which prevented a person from pursuing his
occupational freedom, were issued in violation of the common law and that
such grants of monopoly were therefore legally void.33
And third, the typical Lockean Natural Rights Guarantee guaranteed a
right to enjoy life, liberty, and property. It is possible that the enjoyment of
life and liberty might be expressed by wanting to work at a job more than
sixty hours a week, the right to educate one’s child in a private school, or the
right to procreate. If so, the Lockean Natural Rights Guarantees might
support the holdings in Lochner, Pierce, Meyer, and Skinner. Many of the
Guarantees further specified that the property right included specific rights
for “acquiring, possessing, and protecting property,” language that might
implicate gun rights.34 Several Guarantees went even further and
constitutionally protected the right to pursue and obtain happiness or safety.35
This language, too, could be read as protecting fundamental liberties. The
Virginia Lockean Natural Rights Guarantee exemplifies the typical
Guarantee, and contains all three elements:
That all men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their posterity;
namely, the enjoyment of life and liberty, with the means of acquiring
and possessing property, and pursuing and obtaining happiness and
safety.36

31. Id. at 510; Lofft at 18–19.
32. Id.
33. The Case of the Monopolies, (1602) 77 Eng. Rep. 1260 (Q.B.) 1266; 11 Co. Rep. 84 b, 88 b.
34. E.g., CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and
have certain inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”).
35. E.g., ALA. CONST. of 1868, art. I, § 1 (“That all men are created equal; that they are endowed
by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of
happiness.”); CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and
have certain inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”).
36. VA. BILL OF RIGHTS of 1864, § 1 (“That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter into a state of society, they cannot, by
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Nineteen of the twenty-four historical constitutions contain typical
Guarantees, with each of these nineteen Guarantees including all three
elements or parts. Fifteen of the nineteen typical Lockean Natural Rights
Guarantees—the California,37 Florida,38 Illinois,39 Iowa,40 Kansas,41
Louisiana,42 Maine,43 Massachusetts,44 Nevada,45 New Jersey,46 Ohio,47

any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the
means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”).
37. CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and have
certain inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”).
38. FLA. CONST. of 1868, declaration of rights, § 1 (“All men are by nature free and equal, and
have certain inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.”).
39. ILL. CONST. of 1847, art. XIII, § 1 (“That all men are born equally free and independent,
and have certain inherent and indefeasible rights; among which are those of enjoying and defending
life and liberty, and of acquiring, possessing, and protecting property and reputation, and of pursuing
their own happiness.”).
40. IOWA CONST. art. I, § 1 (amended 1988) (“All men are, by nature, free and equal, and have
certain inalienable rights among—which are those of enjoying and defending life and liberty,
acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”).
41. KAN. CONST. bill of rights, § 1 (“All men are possessed of equal and inalienable natural
rights, among which are life, liberty, and the pursuit of happiness.”).
42. LA. CONST. of 1868, tit.1, art. I (“All men are created free and equal, and have certain
inalienable rights; among these are life, liberty and the pursuit of happiness. To secure these rights,
governments are instituted among men, deriving their just powers from the consent of the
governed.”).
43. ME. CONST. art. I, § 1 (amended 1988) (“All men are born equally free and independent,
and have certain natural, inherent 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.”).
44. MASS. CONST. pmbl. (“The end of the institution, maintenance, and administration of
government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals
who compose it with the power of enjoying, in safety and tranquility, their natural rights, and the
blessings of life . . . .”); MASS. CONST. art. I (amended 1976) (“All men are born free and equal,
and have certain, natural, essential, and unalienable rights; among which may be reckoned the right
of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting
property; in fine, that of seeking and obtaining their safety and happiness.”).
45. NEV. CONST. art. I, § 1 (“All men are, by nature, free and equal, and have certain inalienable
rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and
protecting property, and pursuing and obtaining safety and happiness.”).
46. N.J. CONST. of 1844, art. I, § 1 (“All men are by nature free and independent, and have
certain natural and inalienable 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.”).
47. OHIO CONST. of 1851, art. I, § 1 (“All men are, by nature, free and independent, and have
certain inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”).
2015] Lockean Natural Rights Guarantees 1307
Pennsylvania,48 South Carolina,49 Virginia,50 and Wisconsin51 Guarantees—
generally followed this typical form without substantive variation. The
remaining four typical Lockean Natural Rights Guarantees—the Delaware,52
New Hampshire,53 Kentucky,54 and Vermont55 Guarantees—expanded
beyond the basic three parts. The Delaware and New Hampshire Guarantees
specifically included freedom of religion in their listing of individual rights.56

48. PA. CONST. of 1838, art. IX, § 1 (“That all men are born equally free and independent, and
have certain inherent and indefeasible rights, among which are those of enjoying and defending life
and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their
own happiness.”).
49. S.C. CONST. of 1868, art. I, § 1 (“All men are born free and equal—endowed by their
Creator with certain inalienable rights, among which are the rights of enjoying and defending their
lives and liberties, of acquiring, possessing and protecting property, and of seeking and obtaining
their safety and happiness.”).
50. VA. BILL OF RIGHTS of 1864, § 1 (“That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter into a state of society, they cannot, by
any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the
means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”).
51. WIS. CONST. art. I, § 1 (amended 1982) (“All men are born equally free and independent,
and have certain inherent rights, among these are life, liberty and the pursuit of happiness; to secure
these rights, governments are instituted among men, deriving their just powers from the consent of
the governed.”).
52. DEL. CONST. of 1831, pmbl. (“Through divine goodness all men have, by nature, the rights
of worshipping and serving their Creator according to the dictates of their consciences; of enjoying
and defending life and liberty, of acquiring and protecting reputation and property, and, in general,
of attaining objects suitable to their condition, without injury by one to another; and as these rights
are essential to their welfare, for the due exercise thereof, power is inherent in them; and therefore
all just authority in the institutions of political society is derived from the people, and established
with their consent, to advance their happiness. And they may for this end, as circumstances require,
from time to time, alter their constitution of governance.”).
53. N.H. CONST. pt. 1, art. I (“All men are born equally free and independent; therefore, all
government of right originates from the people, is founded in consent, and instituted for the general
good.”); N.H. CONST. pt. 1, art. II (amended 1974) (“All men have certain natural, essential, and
inherent rights; among which are the enjoying and defending life and liberty, acquiring, possessing,
and protecting property, and, in a word, of seeking and obtaining happiness.”); N.H. CONST. pt. 1,
art. IV (“Among the natural rights, some are in their very nature unalienable, because no equivalent
can be given or received for them. Of this kind are the rights of conscience.”).
54. KY. CONST. of 1850, pmbl. (“We, the representatives of the people of the State of Kentucky,
in convention assembled to secure to all the citizens thereof the enjoyment of the rights of life,
liberty, and property, and of pursuing happiness, do ordain and establish this Constitution for its
government.”); KY. CONST. of 1850, art. XIII, § 3 (“The right of property is before and higher than
any constitutional sanction; and the right of the owner of a slave to such slave, and its increase, is
the same, and as inviolable as the right of the owner of any property whatever.”).
55. VT. CONST. ch. 1, art. I (amended 1921 & 1991) (“That all men are born equally free and
independent, and have certain natural, inherent, and inalienable rights, amongst which are, the
enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining happiness, and safety;—therefore, no male person born in this country, or brought
from over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice, after
he arrives to the age of twenty-one years, nor female in like manner after she arrives to the age of
eighteen years, unless they are bound by their own consent after they arrive to such age, or bound
by law for the payment of debts, damages, fines, costs, or the like.”).
56. DEL. CONST. of 1831, pmbl.; N.H. CONST. pt. 1, art. V.
1308 Texas Law Review [Vol. 93:1299
The Kentucky Guarantee contained a separate provision specifying that its
Lockean Natural Rights Guarantee did not ban human slavery,57 while the
Vermont Guarantee concluded with an extra provision specifically
abolishing slavery.58 In other words, the Framers of the Vermont constitution
explicitly wrote down their conclusion that the Vermont Lockean Natural
Rights Guarantee abolished slavery, a conclusion also reached by several
other state courts interpreting their more general Lockean Natural Rights
Guarantees.59
Five of the atypical Guarantees contained slight variations from the
typical Lockean Natural Rights Guarantees form. The Alabama,60 Indiana,61
and Nebraska62 Guarantees did not include the right to property. The North
Carolina Guarantee substituted the term “property” for the phrase
“enjoyment of the fruits of their own labor.”63 The Missouri constitution did
not include a provision on the equality or freedom of men.64 We refer to these
twenty-four clauses collectively as the “Lockean Natural Rights Guarantees”
throughout the remainder of this Article.
In addition to the twenty-four states with Lockean Natural Rights
Guarantees in 1868, three additional state constitutions contained vaguer,
atypical clauses with weak, vague language that calls to mind the Lockean
Natural Rights Guarantees. Thus, the Constitution of the State of
Connecticut recognized and established “the great and essential principles of
liberty and free government” without specific reference to the equality or
freedom of men, inalienable or natural rights, or rights beyond liberty.65 This
language is an echo of the Lockean Natural Rights Guarantee language and

57. KY. CONST. of 1850, art. XIII, § 3.
58. VT. CONST. ch. 1, art. I (amended 1921 & 1991).
59. See infra subpart III(A).
60. ALA. CONST. of 1868, art. I, § 1 (“That all men are created equal; that they are endowed by
their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of
happiness.”).
61. IND. CONST. art. I, § 1 (amended 1984) (“We declare, That all men are created equal; that
they are endowed by their Creator with certain unalienable rights; that among these are life, liberty,
and the pursuit of happiness; that all power is inherent in the people; and that all free governments
are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and
well being.”).
62. NEB. CONST. of 1866, art. I, § 1 (“All men are born equally free and independent, and have
certain inherent rights; among these are life, liberty, and the pursuit of happiness. To secure these
rights, governments are instituted among men, deriving their just powers from the consent of the
governed.”).
63. N.C. CONST. of 1868, art. I, § 1 (“That we hold it to be self-evident that all men are created
equal; that they are endowed by their Creator with certain unalienable rights; that among these are
life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”).
64. MO. CONST. of 1865, art. I, § 1 (“That we hold it to be self-evident that all men are endowed
by their Creator with certain inalienable rights, among which are life, liberty, the enjoyment of the
fruits of their own labor, and the pursuit of happiness.”).
65. CONN. CONST. of 1818, art. I, pmbl. (“That the great and essential principles of liberty and
free government may be recognized and established, we declare, . . . .”).