Much of the academic writing about constitutional law and theory, both in the originalist and non-originalist camps, presumes that the Constitution protects at least some fundamental rights. Most originalists reject substantive due process and argue alongside Justice Hugo Black and former Judge Robert H. Bork that the only fundamental rights that are protected are the ones enumerated in the Constitution.1 Other originalists such as Judge Michael McConnell have written that the Privileges or Immunities Clause of the Fourteenth Amendment protects both enumerated and unenumerated rights so long as those rights are deeply rooted in history and tradition.2 The Supreme Court has shown some sympathy to this latter approach. In Washington v. Glucksberg,3 the Justices declined to recognize a right to assisted suicide because they found such a right was not deeply rooted in our history and tradition.4 A majority of the Court in Glucks berg thus adopted the approach to unenumerated rights advocated by Justice Antonin Scalia5 in Michael H. v. Gerald D. Scalia argued for the protection of only those unenumerated rights that are deeply rooted in American history and tradition when viewed at the most specific level of generality identifiable.6
Other Supreme Court Justices have also argued for looking to history and tradition to determine what unenumerated rights, if any, the Fourteenth Amendment might protect. Thus, in Moore v. City of East Cleveland,7 Justice Lewis Powell called for such an inquiry.8 In Bowers v. Hardwick,9 Justice Byron White declined to find a right to engage in sodomy in part because such a right was not deeply rooted in history and tradition.10 Other Justices have said more vaguely that the only unenumerated rights the Fourteenth Amendment protects are those that are fundamental (Justice Frankfurter11) or that are implicit in the concept of ordered liberty (Justice Cardozo12 and the second Justice Harlan13). Presumably any such rights that exist would have a long historical pedigree. It is possible but unlikely that fundamental rights or rights implicit in the concept of ordered liberty would not also be deeply rooted in our history and tradition.
All of this raises the question that we seek to address in this Article: Exactly what fundamental rights did most Americans recognize and enjoy when the Fourteenth Amendment was enacted into law in 1868? If, as Judge McConnell argues, the Privileges or Immunities Clause of that Amendment protects some unenumerated fundamental rights, exactly what such rights did most Americans have in 1868? Put another way, what were the privileges or immunities that most Americans had in 1868? To shed light on this question, we decided to look at state constitutional law. There were thirty-seven states in 1868 when the Fourteenth Amendment was ratified and all of them protected a list of individual rights in their constitutions. What fundamental rights were among those that were protected under state constitutional law in 1868? Did the rights protected include all of the rights in the federal Bill of Rights that were later incorporated to apply against the states? What about the four rights in the Bill of Rights that have not been incorporated? Were those rights protected under state constitutional law in 1868? Did any states in 1868 protect a right to privacy or to bodily autonomy or to freedom in matters of sexuality?
We will not seek to claim here that the question of what unenumerated rights, if any, the Fourteenth Amendment protects can be definitively answered solely by looking at state constitutional law in 1868, but we do think such an inquiry can help shed light on that question. There are clearly a number of fundamental rights, such as the liberty of contract and the rights to own and inherit property, that were protected at common law but for some reason never found their way into state constitutions. So long as those rights were very deeply rooted in our history and tradition, they may be among the rights Justice Bushrod Washington had in mind when he talked about which fundamental privileges or immunities were protected by Article IV, Section Two of the Constitution in his celebrated but vacuous opinion in Corfield v. …