22 Pages Posted: 24 Oct 2010
Date Written: 1989
This article examines the formation of the Bill of Rights – or Declaration of Rights as it was entitled – in California’s 1849 constitution. It analyzes the sources drawn upon to fashion that Bill of Rights and how the drafters of California’s first constitution understood the process and purpose of incorporating fundamental principles into a nineteenth century constitution. While those drafters borrowed from existing models and constitutional provisions, considerably more than simple copying was going on. With some notable exceptions, the delegates to that convention did not craft original subjects of protection. They did, however, display an acute awareness of the significance of the process they were engaged in and the significance of the provisions they adopted – original or not.
Whatever our attachment to the familiar phrasing of the Federal Bill of Rights, the fact remains that many, if not most, state constitutions clearly intended to provide broader individual rights than did the federal model. Looking only at the language used in California’s Bill of Rights to describe similar federal principles as well as the articulation of rights and protections not found in the Federal constitution, it becomes evident that broader protections are accorded under California’s 1849 constitution than under the Federal constitution. Indeed, California’s 1849 Bill of Rights suggests that its authors not only wished to safeguard individual liberties by crafting language to prohibit and restrict what the state government could do, but also sought to affirm inalienable rights that the people possessed and that the government should inculcate and support.
Thus, California’s constitutional Framers may have sown the seeds for two enormous developments beyond the scope of the Federal constitution: requiring the state to promote individual liberties and giving constitutional protection to purely private infringements of those individual liberties. Moreover, the goals and objectives of those coming to California were much broader and more ambitious than simply a legal system that would provide predictability and efficiency.
Suggested Citation: Suggested Citation
Fritz, Christian G., More than ‘Shreds and Patches’: California’s First Bill of Rights (1989). Hastings Constitutional Law Quarterly, Vol. 17, No. 1, 1989. Available at SSRN: https://ssrn.com/abstract=1695689