What Rights are Deeply Rooted in American History and Tradition?
Steven G. Calabresi and Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? Northwestern Public Law Research Paper No. 08-06 Available at SSRN: http://ssrn.com/abstract=1114940
A consistent theme of the U.S. Supreme Court’s substantive due process caselaw over the last thirty years has been that, at a bare minimum, rights that are deeply rooted in history and tradition are constitutionally protected by the Fourteenth Amendment against state infringement. Some justices think the Fourteenth Amendment protects newer unenumerated rights as well, but all the justices including Scalia and Thomas agree that it protects unenumerated rights that are deeply rooted in history and tradition.
Given this, we thought it would be valuable to do a survey of exactly what rights were protected under state constitutions in 1868 when the Fourteenth Amendment was ratified. 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 . . .