State Constitutional Rights In 1868

The Bill of Rights in the United States Constitution is applied to state and local government in the United States through the legal fiction that the 14th Amendment to the United States Constitution "incorporates" those rights into the 14th Amendment's regime of constitutional regulation of state government action.

A new law review article looks at which rights state government protected at that time, with an eye towards establishing what constitutional rights were seen as universally necessary and should be incorporated under the 14th Amendment. Its finding are as follow:

We thus do a nose-count of rights protected by the thirty-seven state constitutions in 1868. We found that almost all of the rights in the federal Bill of Rights were also recognized as being fundamental rights by state constitutions in 1868. We think this finding is significant because it may suggest that the incorporation of the rights in the federal Bill of Rights on the ground that they were fundamental rights protected as a matter of Fourteenth Amendment substantive due process was correct. We found in addition that several provisions of the federal Bill of Rights that have not been incorporated arguably ought to have been incorporated. Our evidence suggests that the Seventh Amendment right to civil jury trial and the right to indictment by a Grand Jury probably ought to be incorporated. Perhaps surprisingly, the case for incorporation of the Second Amendment right to keep and bear arms as an individual right is a closer question.

We also found that state constitutions protected a number of rights as being fundamental in 1868 that are not in the federal Bill of Rights. The most important such right is the right to a public school education, which was recognized in some form in thirty-six out of thirty-seven state constitutions in 1868.

The authors, in my opinion, misstate the constitutional test for incorporation of a right through the 14th Amendment, which focuses more on the importance of the right for the overall regime of democratic civil government, rather than a mere nose count of the rights that were established in 1868. In this regard, analysis of the 7th Amendment right to a civil jury trial is informed by the fact that the United States is unique in the world in having such a broad right to a jury trial in civil matters - even the originators of civil juries, the English, have all but abolished the right there. Likewise, the analysis of the right to indictment by grand jury is informed by the fact that only about half of states now have a widespread right to a grand jury indictment.

Public education, of course, is a state, rather than a federally recognized right, precisely because that governmental function was clearly allocated to states rather than the federal government in the federal scheme.

I suspect, without a careful read of the article, that most state constitutions had some protection for a right to bear arms, but that the wording difered substantially, suggesting that while there was some sense that this was a right, that its scope was as seriously disputed in 1868 as it is now.

I am among those who don't have a real problem with the U.S. Supreme Court in Heller which provides modest protections against federal limitations on the right to bear arms, but don't believe that this right should be incorporated to apply vis-a-vis the states which have state constitutional protections that vary in material respects.