Social Contracts: State Convention Drafting History of Natural Rights Guarantees

• In Event: Law, Politics, and Development of State Constitutions in the U.S. Federal System

Abstract

“Lockean Natural Rights Guarantees” are provisions in state constitutions that (1) guarantee “natural,” “inherent,” “indefeasible,” or “unalienable” rights (as the many varieties say) and (2) enumerate a few of these rights, most often including the rights of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing happiness and safety. Today, the Guarantees appear in dozens of state constitutions. Some of them are largely ignored while others have been judicially transformed into “due process” and “equal protection” clauses, even though they do not contain those phrases. Yet, in today’s textualist environment state courts are taking a closer look at their actual language. Much more than perhaps any other common state constitutional provision, they are ripe for rejection of past attempts to tie them to the (very different) text of the U.S. Constitution. Key to a reexamination of these provisions is what their drafters said about them at the time they were written, from 1776 to the late twentieth century. This paper brings together the records of where delegates to constitutional conventions discussed the Guarantees and how these statements can be used in interpreting their various iterations. The statements generally burnish the view that the Guarantees are substantive protections of a broad category of rights, and not the later espoused view that they are simple rhetorical gloss.

Author

• Anthony Brian Sanders, Institute for Justice