Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History & Tradition?

Conducting an exhaustive survey of rights protected by state constitutions in 1868 (the year the Fourteenth Amendment was ratified), Professor Steven Calabresi and Sarah Agudo set out to define empirically what rights are deeply rooted in American history and tradition.  The result may be the most comprehensive catalog of state constitutional provisions from the post-Civil War period available.  

The authors grouped the various rights into sixteen substantive categories.  They then classified each protected right based on the percentage of states that recognized the right and the percentage of the population living in those states.  They also looked at geographic regions to see if some rights were more prevalent in certain regions than others.  The authors recognized that many state constitutions were relatively young in 1868, so they compared the older constitutions to the younger ones, hypothesizing that rights protected in newer constitutions might not yet be viewed as fundamental. 

Calabresi and Agudo’s systematic approach lends authority to their data.  They avoid drawing too many inferences, and often simply present their data to allow readers to draw their own conclusions. 

The results of their survey are thought-provoking and may sometimes appear contradictory to the modern reader.  For example, while every state had protections for a free press, free exercise of religion, and prohibitions on excessive bail, only slightly more than half of the states had the right to bear arms and the right to a public trial.  Even fewer—just over one third—had an equivalent to the Fourteenth Amendment’s Privileges or Immunities Clause.  A substantial minority of states recognized the right not to bear arms, exempting conscientious objectors from military service.  Ceremonial deism, such as  references to “God Almighty,” is found in thirty of thirty-seven state constitutions, leading the authors to surmise that in 1868 ceremonial deism was consistent with the free exercise and nonestablishment of religion.  Almost all states had a protection again self-incrimination, yet only twelve of the thirty-seven states had the right to counsel for criminal defendants.  A negligible minority of states had constitutional provisions allowing a citizen to sue the state.  A substantial minority of states allowed sitting legislators to be free from civil process during a legislative session, and a large majority of states prohibited a legislator from being arrested for a criminal offense during a legislative session.

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Note that the Calabresi/Agudo piece includes an Individual Rights Appendix, which is available by clicking here. The Appendix includes embedded bookmarks to facilitate navigation to specific pages. To navigate using the bookmarks in Adobe Acrobat Reader 8, do the following:

1. If the Acrobat Reader Navigation Panel containing navigation icons is not displayed along the left edge of the document, right-click on the displayed document and select the menu item "Show Navigation Panel Buttons."

2. Select the Bookmark button from the Navigation Panel to display a list of the bookmarks in the document.

3. Scroll through the list and click on the bookmark corresponding to a section of interest.