Individual Rights Under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States?

Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo*

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.

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© 2018 Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Steven Gow Calabresi is Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law. I am grateful to my Uncle Guido Calabresi and my very good friend and coteacher, Akhil Reed Amar, for encouraging me to write this Article and to finish this project. I would also like to thank Tom Gaylord and Clare Gaynor Willis, two Northwestern Law School librarians, for their assistance in tracking down reputable historical sources during our research process. For this Article, Kathryn L. Dore—with Sarah E. Agudo’s help—did a first draft of modern-day state constitutional rights in 2010, and Sarah E. Agudo did a first draft of state constitutional rights from 1868, which was published in the Texas Law Review. Hannah M. Begley did her own unique survey of state constitutional rights in both 1868 and 2017, for which I initially double-checked all coding decisions. James Lindgren then independently coded the 2017–18 constitutional provisions, computing reliability scores between the earlier joint coding and his new one. Differences were resolved by Lindgren and me. When the authors of this Article express their views using such words as “we,” “our,” and “us,” the opinions expressed reflect the views of the two faculty authors, not necessarily the authors who were students when they did the bulk of their work on the project.

James Lindgren is Professor of Law, Northwestern Pritzker School of Law; B.A., Yale University; J.D., University of Chicago; Ph.D., Sociology, University of Chicago.

Hannah M. Begley is Brown University, B.A., Class of 2015; J.D. Candidate, Stanford Law School, Class of 2020.

Kathryn L. Dore is Northwestern Pritzker School of Law, J.D. Class of 2011.

Sarah E. Agudo is Northwestern Pritzker School of Law, J.D. Class of 2008.

1 Jack M. Balkin, Living Originalism (2011).