INTRODUCTION 51 I. METHODOLOGY 53 II. THE DATA ON THE STATE CONSTITUTIONS 54 A. Rights Bearing on Religion 54 1. Establishment Clauses 54 2. Free Exercise Clauses 62 3. References to God in the Preamble 67 4. Ceremonial Deism 71 B. Freedom of Expression Rights 73 1. Freedom of the Press 73 2. Freedom of Speech 76 3. Petition and Assembly 77 C. Gun Rights and Clauses Bearing on the Military 80 1. The Right to Keep and Bear Arms 80 2. Quartering Soldiers 84 D. Rights Against Unreasonable Searches and Seizures 85 1. Unreasonable Search and Seizure 86 2. Lawful Warrants 88 E. Criminal Procedure Rights 91 1. Double Jeopardy 91 2. Habeas Corpus 93 3. Self-incrimination 95 4. Confrontation 98 F. Due Process Rights 100 G. Property Rights 102 1. Takings Clauses 103 2. Monopolies 105 3. Legal Recourse for Property-Related Injuries 109 H. The Right to Trial by Jury 111 1. Criminal Juries 111 2. Civil Juries 113 I. Rights Against Excessive Punishment 116 1. Excessive Bail 117 2. Excessive Fines 118 3. Cruel and Unusual Punishment 119 4. Proportional Punishment 121 J. State Constitutional Acknowledgement of Unenumerated Rights 124 1. Recognition of "Lockean" Rights and Natural or Unalienable Rights 125 2. Ninth Amendment Analogs 132 K. Other State Constitutional Rights Without Federal Analogs 133 1. Power over Government 133 2. Class-Based Legislation 136 3. Separation of Powers 141 4. Education and Public Schools 143 III. SUMMARY 146 IV. DISCUSSION AND CONCLUSION 150 INTRODUCTION
For the last forty years, Supreme Court Justices, Presidents, Senators, and constitutional law scholars have fiercely debated the question of whether we ought to follow the original public meaning of the text of the Constitution and of the Fourteenth Amendment, or whether we should embrace living constitutionalism and, by extension, more modern rights, like the right to privacy. The originalist camp has included former President Ronald Reagan, former Attorney General Edwin Meese III, former Supreme Court Justice Antonin Scalia, and current Supreme Court Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh as well as Senator Orrin Hatch. The living-constitutionalist camp, which also identifies itself as the pragmatist camp, is represented by former Presidents Bill Clinton and Barack Obama; former Senator and Vice President Joe Biden and current Senator Chuck Schumer; and by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Three other Justices, Chief Justice John Roberts, Justice Samuel Alito, and former Justice Anthony Kennedy, lean in a conservative direction but largely for practical, as opposed to originalist, reasons.
The same split can be found among constitutional law professors. Professors Michael McConnell, Randy Barnett, Michael Stokes Paulsen, Gary Lawson, John Harrison, and Mike Rappaport all fall in the originalist camp while Professors Bruce Ackerman, William Eskridge, Lawrence Lessig, Reva Siegel, Laurence Tribe, and Pamela Karlan all fall in the living constitutionalist, or pragmatist, camp. Two constitutional law scholars at Yale Law School, Akhil Reed Amar and Jack M. Balkin, have adopted originalist methodologies while reaching liberal political outcomes. Thus, Balkin entitled one of his recent books Living Originalism. (1)
We propose in this Article to put aside normative theorizing for the moment and instead to mostly present some data and empirical proof that we think suggest that the two sides of this debate are not really all that far apart. We seek to prove this by comparing the rights that exist in today's state constitutions in 2018 with the rights that existed in state constitutions in 1868, when the Fourteenth Amendment was ratified 150 years ago this year. What our comparison will show is that the original and the living Fourteenth Amendment are not nearly as different as normative theorists have claimed. This is an appropriate way to celebrate the 150th anniversary of the Fourteenth Amendment, which was ratified in July of 2018.
State constitutions are an almost ideal vehicle for measuring what new rights are coming into fashion and what old rights are going out of fashion because they are so much easier to amend than the Federal Constitution. In many states, like California, a 51% majority of the voters can amend the state constitution by passing an initiative or referendum. (2) One would thus expect state constitutional law to be much more up to date than the Federal Constitution, which has only been amended seventeen times in the 227 years since the Founders adopted the Federal Bill of Rights.
On the other hand, why might rights not be included in state constitutions? First, perhaps there might be a difference in the locus of power between state and federal governments. For example, education has traditionally been a province of state and local governments so it would more likely be included in a state constitution than in the federal one. (3) Second, some rights (such as wearing a hat or sleeping in bed on one's right side) may have been deemed too trivial to be noted in either state or federal constitutions. (4) Third, personal rights (such as marriage) would be somewhat less likely to be explicitly listed in either sort of constitution than political rights.
This Article is actually the third and final article in a series that began with (A) 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?; and (B) Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?. (5) This Article looks at what rights are protected by state constitutions today, in 2018, and compares our findings with the data we collected in our earlier two articles, which looked at rights under state constitutional law in 1868 when the Fourteenth Amendment was ratified, and at what rights were protected in state constitutional law in 1791 when the Federal Bill of Rights with its Ninth Amendment was ratified.
Comparing state constitutional-law rights today, in 2018, with rights protected in 1868 when the Fourteenth Amendment was ratified reveals an overwhelmingly similar number of outcomes, but a few startling and counterintuitive differences. We will save the discussion of the major differences for the conclusion of our Article and will first present our data. As to each right, we will discuss what number of states protect that right today in 2018 and what number protected that right in 1868, when the Fourteenth Amendment was ratified, and in 1791, when the Ninth Amendment was ratified.
We begin in Part I by presenting the methodology that we used in compiling our data. We then discuss the data as to each right in Part II and summarize our results in Part III. Last, in Part IV, we analyze the implications of our findings.
Our method involved four steps: collecting, categorizing, resolving coding differences, and counting. First, we obtained copies of the present-day version of all fifty state constitutions through the official state website of each individual state. (6) Next, at least two of us both separately and jointly examined each state constitution closely. In a comprehensive database, we kept track of each individual right that is discussed below, notating within our records which states protect those rights. Whenever a given state's constitution contained a relevant clause, we included in our database both the pincite of the clause and the text of the clause. Note that this Article is not an exhaustive listing of all rights included in the present-day versions of all fifty state constitutions--instead, it is a sampling of rights that have strong support across the state constitutions. For space reasons, we have not quoted each state constitutional clause that we count in this printed version of our Article. We will, however, post on SSRN a version of our Article that includes the text of each right that we cite in the footnotes. This will make it easier for future scholars to check our work and dispute our state rights counts if they want to do so.
After a collaborative coding was agreed on by at least two coders, the results were described in draft text, with some summary statements of the criteria used in classifying. Then an independent coder, with no knowledge of how any particular state had been coded, did a new coding of the potentially relevant provisions of the 2018 constitutions. This independent coding matched the earlier coding to a very high degree. Indeed, a standard measure of inter-rater reliability, Cohen's Kappa, was computed, producing a score of .915. By convention, a Cohen's Kappa of over .81 is often viewed as "almost perfect or perfect agreement," sufficient for making "definite conclusions." (7) Then Professors Calabresi and Lindgren resolved the differences between the two codings.
After each stage, we counted the number of state constitutions that textually enumerated each individual right (or denied each right) discussed below. (8) Our analysis below usually includes (a) the total number of states that protect each right; (b) what percentage of the states that number constitutes; and (c) what percentage of the overall U.S. population lives in a state that protects each right in 2018. We used the 2010 census (excluding the District of Columbia and U.S. territories) when calculating population totals for rights protected in 2018.
Our analysis discusses a large number of individual positive-law rights that exist under state constitutional law in 2018. Since such a large number of rights were recognized within the state constitutions, we thought it useful to group the rights in question into the following categories: (1) rights bearing on religion; (2) freedom of expression rights; (3)...