Individual Rights under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States?

Abstract

This law review article describes what individual rights are protected under state constitutional law today in 2018; in 1868 when the Fourteenth Amendment was ratified; and in 1791, when the federal Bill of Rights was ratified. We seek to offer a picture over time as to what rights have gone into style and what rights have fallen out of style over the last 227 years. State constitutions are much easier to amend than is the federal constitution, so they provide a good sociological vantage point from which to assess rights. Moreover, since most originalists think that rights should be deeply rooted in history and tradition, as the U.S. Supreme Court held in Washington v. Glucksberg, the 1791 and 1868 data ought to be of interest to them. In contrast, the 2018 data should be of interest to advocates of a living constitution.