On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees By Steven G. Calabresi* & Sofía M. Vickery** 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 case law 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 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 Natural Rights Guarantees,” 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 Natural Rights Guarantees to an enormous variety of issues. From this robust body of state constitutional case law, we conclude that the Lockean Natural Rights Guarantees 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 Natural Rights Guarantees in their state constitutions, and while not discounting the possibility that some regulations could violate the Guarantees, 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 * Professor of Law, Northwestern University School of Law. Visiting Professor of Political Science, 2010–2018, Brown University. Professor Calabresi is especially grateful to Dean Dan Rodriguez of the Northwestern University School of Law and to John Tomasi, the head of the Political Theory Project at Brown University, who have made possible the unique working environment in which we were able to write this law review Article. Thanks also to Professors John O. McGinnis and Jim Pfander for comments on earlier drafts of this Article. ** Class of 2011, Northwestern University School of Law. 1300 Texas Law Review [Vol. 93:1299 finding of particular relevance to the debate on gay marriage. However, the range of issues potentially implicated by the Lockean Natural Rights Guarantees and inconsistent rulings in many areas also suggest 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. I.  INTRODUCTION ................................................................................. 1301  II.  HISTORICAL ORIGINS AND DEVELOPMENT OF THE LOCKEAN NATURAL RIGHTS GUARANTEES ...................................................... 1312  A.  Framing of the Original Lockean Natural Rights Guarantee 1313  B.  Spread of the Lockean Natural Rights Guarantees and Their Impact ................................................................................... 1316  C.  Political Theory Debates and Amendments to the Guarantees ............................................................................ 1321  III. SLAVERY ........................................................................................... 1324  A.  Slavery Unconstitutional ....................................................... 1327  1.  Vermont Constitution: Textual Link Between Lockean Natural Rights Guarantee and Slavery Prohibition ........ 1327  2.  Massachusetts: Lockean Natural Rights Guarantee Alone to Abolish Slavery ................................................. 1328  3.  Indiana, Illinois, and Ohio: Lockean Natural Rights Guarantees to Extend Existing Slavery Prohibitions ...... 1335  B.  Slavery Constitutional ........................................................... 1344  IV. LOCKEAN NATURAL RIGHTS GUARANTEES AND THE RIGHT TO A WRIT OF HABEAS CORPUS ................................................................ 1353  V.  LOCKEAN NATURAL RIGHTS GUARANTEES AND MINORITY RIGHTS .............................................................................................. 1357  VI. CIVIL AND POLITICAL RIGHTS .......................................................... 1362  A.  Freedom of Religion ............................................................. 1362  B.  Right of Marriage .................................................................. 1366  C.  Involuntary Confinement and Transportation of the Poor .... 1368  D.  Retroactive Legislation ......................................................... 1370  E.  Statutes Imposing or Excusing Liability ............................... 1372  F.  Miscellaneous Civil and Political Rights .............................. 1374  VII. RIGHTS RELATED TO LEGAL PROCEDURES ..................................... 1381  A.  The Right of Appeal .............................................................. 1382  B.  Legislative Interference with Final Judgments ..................... 1385  C.  Procedural Rights During Legal Proceedings ....................... 1387  VIII. LIQUOR LAWS ................................................................................ 1391  A.  Liquor Laws Unconstitutional .............................................. 1391  B.  Liquor Laws Constitutional .................................................. 1395  IX. OTHER BUSINESS REGULATIONS ...................................................... 1404  A.  Sabbath Laws ........................................................................ 1404  B.  Test Oaths ............................................................................. 1409  C.  Miscellaneous Regulations ................................................... 1413  X.  PROPERTY TRANSFER REGULATIONS ............................................... 1418 2015] Lockean Natural Rights Guarantees 1301 A.  Regulation of Property Transfers .......................................... 1418  B.  Creditor–Debtor Property Regulations ................................. 1423  XI. LOCKEAN NATURAL RIGHTS GUARANTEES AND POWERS OF TAXATION ......................................................................................... 1425  A.  General Taxation Schemes ................................................... 1425  B.  Taxation for Railroads .......................................................... 1429  C.  Taxation for Enlistment Bounties ......................................... 1434  XII. CONCLUSION .................................................................................... 1436  I. Introduction Over the last fifty years, some of the most widely debated Supreme Court decisions have been those which spoke of the presence or absence of unenumerated rights. This has been true of the Supreme Court’s decisions in Griswold v. Connecticut;1 in Roe v. Wade;2 in Lawrence v. Texas;3 and, most recently, in United States v. Windsor.4 Today, the debate as to exactly what rights the Constitution protects continues on a wide array of topics including gay marriage, gun-control legislation, substance-control legislation, and property regulation.5 Those who claim the Fourteenth Amendment protects unenumerated rights base their claim either on the doctrine of substantive due process or, more recently, on the Privileges or Immunities Clause of the Fourteenth Amendment.6 They claim that some unenumerated rights are fundamental rights substantively protected by the Due Process Clause or that they are privileges or immunities of citizenship.7 Many opponents argue that the Fourteenth Amendment does not protect any rights other than those that are specifically enumerated either in the Bill of Rights or in other parts of the Constitution. Other opponents concede that the Fourteenth Amendment protects unenumerated rights but debate which particular rights are protected. The Supreme Court Justices opposing the expansion of unenumerated rights have rallied in recent years around the position that the only unenumerated, fundamental liberty interests that the Fourteenth Amendment protects are those that are deeply rooted in the nation’s history and traditions. 1. 381 U.S. 479, 484–86 (1965). 2. 410 U.S. 113, 129, 152–54 (1973). 3. 539 U.S. 558, 562, 564, 575 (2003). 4. 133 S. Ct. 2675, 2693–96 (2013). 5. See, e.g., McDonald v. City of Chi., 561 U.S. 742, 767, 778 (2010) (finding that the Second Amendment “right to keep and bear arms is fundamental to [the nation’s] scheme of ordered liberty”); Gonzales v. Raich, 545 U.S. 1, 8 (2005) (analyzing constitutional claims regarding the use of medical marijuana); Robert J. Krotoszynski, Jr., Fundamental Property Rights, 85 GEO. L.J. 555, 557 (1997) (addressing the “open question” of the status of fundamental property rights); Adam Liptak, Supreme Court to Decide Marriage Rights for Gay Couples Nationwide, N.Y. TIMES, Jan. 16, 2015, http://www.nytimes.com/2015/01/17/us/supreme-court-to-decide-whether-gays- nationwide-can-marry.html, archived at http://perma.cc/KC28-A7Q4 (reporting on the Supreme Court’s recent grant of certiorari to cases regarding whether gay marriage is a fundamental right). 6. See infra notes 10–12 and accompanying text. 7. See infra notes 10–12 and accompanying text. 1302 Texas Law Review [Vol. 93:1299 Thus, in Washington v. Glucksberg,8 former Chief Justice William Rehnquist wrote for five Justices that the Due Process Clause of the Fourteenth Amendment protected only fundamental liberty rights that are “objectively, deeply rooted in this Nation’s history and tradition.”9 More recently, in McDonald v. City of Chicago,10 Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito took the view that Second Amendment gun rights were protected against state abridgment by the Fourteenth Amendment because the right to keep and bear arms is deeply rooted in our nation’s history and tradition.11 These four conservative advocates of substantive due process received a critical fifth vote from Justice Clarence Thomas, who wrote that the Privileges or Immunities Clause of the Fourteenth Amendment protected the right to keep and bear arms but only on the ground that it was deeply rooted in American history and tradition.12 The endorsement in McDonald of unenumerated liberty rights that are deeply rooted in history and tradition urgently raises the question of which rights are rooted deeply in history and tradition. This question is made especially pressing because one of the five conservative Justices—Justice Anthony M. Kennedy—has on two occasions taken a more philosophical approach to the derivation of constitutionally protected liberty rights. Justice Kennedy wrote of the Due Process Clause’s protection of liberty as a transcendental concept that includes “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”13 Justice Kennedy embraced this view in the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey14 and in Lawrence v. Texas, where the Court struck down sodomy laws as violating the right to privacy even though the existence of those laws is without any doubt deeply rooted in history and tradition.15 Justice Kennedy seems to have thought in this case that the Texas law in question was more than a “mere meddlesome interference[] with the rights of the individual” and that it was an unreasonable “exercise of the police power” as those phrases are used in Lochner v. New York.16 That in turn raises a question as to whether Lochner- style substantive due process is deeply rooted in American history and tradition and whether unenumerated rights cases like Pierce v. Society of 8. 521 U.S. 702 (1997). 9. Id. at 720–21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (internal quotation marks omitted). 10. 561 U.S. 742 (2010). 11. Id. at 767. 12. Id. at 806, 822–23 (Thomas, J., concurring in part and concurring in judgment). 13. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)) (internal quotation marks omitted). 14. Casey, 505 U.S. at 851. 15. Lawrence, 539 U.S. at 574, 577–79. 16. 198 U.S. 45, 61 (1905); see Lawrence, 539 U.S. at 578–79 (holding that the Texas statute does not further a legitimate state interest that can justify its restriction on personal liberty). 2015] Lockean Natural Rights Guarantees 1303 Sisters17 and Meyer v. Nebraska18 were correctly decided, as well as Skinner v. Oklahoma,19 which seems to have quite correctly displaced Buck v. Bell.20 The conundrum over whether the Fourteenth Amendment protects unenumerated rights is augmented by a survey that Professor Steven Calabresi and Sarah Agudo did several years ago as to what individual rights were protected in state bills of rights in 1868 when the Fourteenth Amendment was finally ratified.21 Professor Calabresi and Ms. Agudo’s research was relied on by Justice Alito in his plurality opinion in McDonald v. City of Chicago.22 Professor Calabresi and Ms. Agudo found that in 1868, twenty-four of the thirty-seven state constitutions existing at that time, nearly a two-thirds majority, contained provisions guaranteeing inalienable, natural, or inherent rights of an unenumerated rights type.23 Thus, in 1868, approximately 67% of all Americans then living resided in states that constitutionally protected unenumerated individual liberty rights.24 Throughout this Article, we use the term “Lockean Natural Rights Guarantees” (or “the Guarantees”) to refer to these unenumerated individual- liberty-rights guarantees.25 Our goal in this Article is to uncover the original understanding of the Lockean Natural Rights Guarantees urgently, in 1868, when the Fourteenth Amendment was adopted. Were the Lockean Natural Rights Guarantees 17. 268 U.S. 510 (1925). 18. 262 U.S. 390 (1923). 19. 316 U.S. 535 (1942). 20. 274 U.S. 200 (1927); see Skinner, 316 U.S. at 538 (declining to distinguish the statute at issue from Buck v. Bell under due process and, instead, holding that the statute failed the requirements of the Equal Protection Clause). 21. Steven G. Calabresi & 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?, 87 TEXAS L. REV. 7, 15–18 (2008). The understanding of unenumerated rights in the states is especially relevant to the meaning of the Fourteenth Amendment if one accepts the premise that “the original intent relevant to constitutional discourse” is the intent “of the parties to the constitutional compact—the states as political entities.” H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 888 (1985). But see id. at 945–48 (explaining that by the outbreak of the Civil War, the understanding of “intent” shifted to focusing on the personal intent of individual Framers). 22. 561 U.S. 742, 777 & n.26 (2010). 23. See Calabresi & Agudo, supra note 21, at 88 (listing twenty-seven of the thirty-seven state constitutions as including provisions guaranteeing unenumerated rights). That article included three additional states on the list: Connecticut, Rhode Island, and Texas. Id. at 20 & nn.48–49. However, as explained infra, the Connecticut, Rhode Island, and Texas Guarantees were so atypical that it is not fully accurate to group them with the twenty-four true Lockean Natural Rights Guarantees. 24. The 67% reflects the population that resided in the twenty-four states with true Lockean Natural Rights Guarantees as of the 1870 census. This percentage was calculated from data available from the U.S. CENSUS BUREAU, POPULATION: 1790 TO 1990, at 27 tbl.16, available at http://www.census.gov/population/www/censusdata/files/table-16.pdf, archived at http://perma.cc /T6UJ-4FLW. 25. See infra Appendix A, for a chart of the twenty-four Lockean Natural Rights Guarantees and three quasi-Guarantees existing in 1868. 1304 Texas Law Review [Vol. 93:1299 understood broadly enough to support arguments for the existence of something like the right to marry a partner of one’s own choosing or the personal liberties at issue in Pierce, Meyer, or Skinner? Or were the Lockean Natural Rights Guarantees essentially empty rhetorical flourishes that meant little or nothing? Our conclusion after exhaustively studying the case law applying the Lockean Natural Rights Guarantees from the founding of the Republic until 1868 is that the Guarantees protected rights grounded in natural law, and in the Northern States, the Guarantees required that civil and political rights be extended to minority group members, a particularly relevant finding if one accepts the premise that, in 1868, the Fourteenth Amendment reflected the views of the Northern States. The Guarantees also suggested that a broad reading ought to be given to enumerated rights and to unenumerated, but deeply rooted, liberties enjoyed by Englishmen under that country’s ancient constitution, which predated the Norman Conquest. At the same time, particularly with respect to property regulation, state courts struggled to give concrete meaning to the Lockean Natural Rights Guarantees, and while not discounting the possibility that some regulations could violate the Guarantees, the state courts generally deferred to the legislature. In this respect, the Lockean Natural Rights Guarantees were remarkably similar to Justice Kennedy’s so-called “sweet mystery of life” language in Lawrence v. Texas,26 which rightly or wrongly has been ignored by lower federal and state courts in post-Lawrence substantive due process cases.27 As Professor Calabresi has previously argued, this “sweet mystery of life” language is unintelligible and thus unenforceable.28 The same thing may be true of the grandly phrased Lockean Natural Rights Guarantees, at least as they are applied to the protection of property. The twenty-four Lockean Natural Rights Guarantees existing in 1868 used very similar language in protecting enumerated and unenumerated individual rights. The typical Lockean Natural Rights Guarantee included three parts or elements. First, it affirmed the freedom or equality of men (or both), stating that all men are born “free and equal” or “free and independent.”29 Sir Edward Coke might well have said that this was an inherent right of Englishmen, and Lord Mansfield held as much in Somerset’s Case30 in 1772, a case holding that slavery was illegal in England because 26. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)); id. at 588 (Scalia, J., dissenting). 27. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 MICH. L. REV. 1517, 1527 (2008). 28. See id. at 1518 (arguing that the Lawrence opinion is “void for vagueness”). 29. E.g., FLA. CONST. of 1868, declaration of rights, § 1 (using the “free and equal” language); ME. CONST. art. 1, § 1 (amended 1988) (using the “free and independent” language); see also infra Appendix A. 30. Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.); Lofft 1. 2015] Lockean Natural Rights Guarantees 1305 liberty was the natural state of man and that only express positive law could deprive a person of his freedom.31 There being no express, positive law in England that authorized the holding of a slave on board a ship in the River Thames in London, the slave was declared free under the common law in a writ of habeas corpus.32 Second, the typical Lockean Natural Rights Guarantee guaranteed inalienable, inherent, or natural rights. Sir Edward Coke would have identified such rights with the common law of England and with the ancient constitution, which had produced it. For this reason, Coke held that royal grants of monopolies, which prevented a person from pursuing his occupational freedom, were issued in violation of the common law and that such grants of monopoly were therefore legally void.33 And third, the typical Lockean Natural Rights Guarantee guaranteed a right to enjoy life, liberty, and property. It is possible that the enjoyment of life and liberty might be expressed by wanting to work at a job more than sixty hours a week, the right to educate one’s child in a private school, or the right to procreate. If so, the Lockean Natural Rights Guarantees might support the holdings in Lochner, Pierce, Meyer, and Skinner. Many of the Guarantees further specified that the property right included specific rights for “acquiring, possessing, and protecting property,” language that might implicate gun rights.34 Several Guarantees went even further and constitutionally protected the right to pursue and obtain happiness or safety.35 This language, too, could be read as protecting fundamental liberties. The Virginia Lockean Natural Rights Guarantee exemplifies the typical Guarantee, and contains all three elements: That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.36 31. Id. at 510; Lofft at 18–19. 32. Id. 33. The Case of the Monopolies, (1602) 77 Eng. Rep. 1260 (Q.B.) 1266; 11 Co. Rep. 84 b, 88 b. 34. E.g., CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”). 35. E.g., ALA. CONST. of 1868, art. I, § 1 (“That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”); CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”). 36. VA. BILL OF RIGHTS of 1864, § 1 (“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by 1306 Texas Law Review [Vol. 93:1299 Nineteen of the twenty-four historical constitutions contain typical Guarantees, with each of these nineteen Guarantees including all three elements or parts. Fifteen of the nineteen typical Lockean Natural Rights Guarantees—the California,37 Florida,38 Illinois,39 Iowa,40 Kansas,41 Louisiana,42 Maine,43 Massachusetts,44 Nevada,45 New Jersey,46 Ohio,47 any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”). 37. CAL. CONST. of 1849, art. I, § 1 (“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”). 38. FLA. CONST. of 1868, declaration of rights, § 1 (“All men are by nature free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.”). 39. ILL. CONST. of 1847, art. XIII, § 1 (“That all men are born equally free and independent, and have certain inherent and indefeasible rights; among which are those of enjoying and defending life and liberty, and of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.”). 40. IOWA CONST. art. I, § 1 (amended 1988) (“All men are, by nature, free and equal, and have certain inalienable rights among—which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”). 41. KAN. CONST. bill of rights, § 1 (“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”). 42. LA. CONST. of 1868, tit.1, art. I (“All men are created free and equal, and have certain inalienable rights; among these are life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”). 43. ME. CONST. art. I, § 1 (amended 1988) (“All men are born equally free and independent, and have certain natural, inherent and unalienable Rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.”). 44. MASS. CONST. pmbl. (“The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life . . . .”); MASS. CONST. art. I (amended 1976) (“All men are born free and equal, and have certain, natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”). 45. NEV. CONST. art. I, § 1 (“All men are, by nature, free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.”). 46. N.J. CONST. of 1844, art. I, § 1 (“All men are by nature free and independent, and have certain natural and inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”). 47. OHIO CONST. of 1851, art. I, § 1 (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”). 2015] Lockean Natural Rights Guarantees 1307 Pennsylvania,48 South Carolina,49 Virginia,50 and Wisconsin51 Guarantees— generally followed this typical form without substantive variation. The remaining four typical Lockean Natural Rights Guarantees—the Delaware,52 New Hampshire,53 Kentucky,54 and Vermont55 Guarantees—expanded beyond the basic three parts. The Delaware and New Hampshire Guarantees specifically included freedom of religion in their listing of individual rights.56 48. PA. CONST. of 1838, art. IX, § 1 (“That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”). 49. S.C. CONST. of 1868, art. I, § 1 (“All men are born free and equal—endowed by their Creator with certain inalienable rights, among which are the rights of enjoying and defending their lives and liberties, of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness.”). 50. VA. BILL OF RIGHTS of 1864, § 1 (“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”). 51. WIS. CONST. art. I, § 1 (amended 1982) (“All men are born equally free and independent, and have certain inherent rights, among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”). 52. DEL. CONST. of 1831, pmbl. (“Through divine goodness all men have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences; of enjoying and defending life and liberty, of acquiring and protecting reputation and property, and, in general, of attaining objects suitable to their condition, without injury by one to another; and as these rights are essential to their welfare, for the due exercise thereof, power is inherent in them; and therefore all just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness. And they may for this end, as circumstances require, from time to time, alter their constitution of governance.”). 53. N.H. CONST. pt. 1, art. I (“All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.”); N.H. CONST. pt. 1, art. II (amended 1974) (“All men have certain natural, essential, and inherent rights; among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and, in a word, of seeking and obtaining happiness.”); N.H. CONST. pt. 1, art. IV (“Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience.”). 54. KY. CONST. of 1850, pmbl. (“We, the representatives of the people of the State of Kentucky, in convention assembled to secure to all the citizens thereof the enjoyment of the rights of life, liberty, and property, and of pursuing happiness, do ordain and establish this Constitution for its government.”); KY. CONST. of 1850, art. XIII, § 3 (“The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave, and its increase, is the same, and as inviolable as the right of the owner of any property whatever.”). 55. VT. CONST. ch. 1, art. I (amended 1921 & 1991) (“That all men are born equally free and independent, and have certain natural, inherent, and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining happiness, and safety;—therefore, no male person born in this country, or brought from over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice, after he arrives to the age of twenty-one years, nor female in like manner after she arrives to the age of eighteen years, unless they are bound by their own consent after they arrive to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.”). 56. DEL. CONST. of 1831, pmbl.; N.H. CONST. pt. 1, art. V. 1308 Texas Law Review [Vol. 93:1299 The Kentucky Guarantee contained a separate provision specifying that its Lockean Natural Rights Guarantee did not ban human slavery,57 while the Vermont Guarantee concluded with an extra provision specifically abolishing slavery.58 In other words, the Framers of the Vermont constitution explicitly wrote down their conclusion that the Vermont Lockean Natural Rights Guarantee abolished slavery, a conclusion also reached by several other state courts interpreting their more general Lockean Natural Rights Guarantees.59 Five of the atypical Guarantees contained slight variations from the typical Lockean Natural Rights Guarantees form. The Alabama,60 Indiana,61 and Nebraska62 Guarantees did not include the right to property. The North Carolina Guarantee substituted the term “property” for the phrase “enjoyment of the fruits of their own labor.”63 The Missouri constitution did not include a provision on the equality or freedom of men.64 We refer to these twenty-four clauses collectively as the “Lockean Natural Rights Guarantees” throughout the remainder of this Article. In addition to the twenty-four states with Lockean Natural Rights Guarantees in 1868, three additional state constitutions contained vaguer, atypical clauses with weak, vague language that calls to mind the Lockean Natural Rights Guarantees. Thus, the Constitution of the State of Connecticut recognized and established “the great and essential principles of liberty and free government” without specific reference to the equality or freedom of men, inalienable or natural rights, or rights beyond liberty.65 This language is an echo of the Lockean Natural Rights Guarantee language and 57. KY. CONST. of 1850, art. XIII, § 3. 58. VT. CONST. ch. 1, art. I (amended 1921 & 1991). 59. See infra subpart III(A). 60. ALA. CONST. of 1868, art. I, § 1 (“That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”). 61. IND. CONST. art. I, § 1 (amended 1984) (“We declare, That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well being.”). 62. NEB. CONST. of 1866, art. I, § 1 (“All men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”). 63. N.C. CONST. of 1868, art. I, § 1 (“That we hold it to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”). 64. MO. CONST. of 1865, art. I, § 1 (“That we hold it to be self-evident that all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”). 65. CONN. CONST. of 1818, art. I, pmbl. (“That the great and essential principles of liberty and free government may be recognized and established, we declare, . . . .”).