On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Provisos

Abstract

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 caselaw 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 when the Fourteenth Amendment was ratified 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 Provisos,” 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 Provisos to an enormous variety of issues. From this robust body of State constitutional case law, we conclude that the Lockean Provisos 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 Provisos in their State constitutions, and while not discounting the possibility that some regulations could violate the Proviso, 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 finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Provisos and inconsistent rulings in many areas also suggests 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.