Social Contracts: The State Convention Drafting History of the Lockean Natural Rights Guarantees
64 Pages Posted: 19 Aug 2024
Date Written: August 02, 2024
Abstract
Two-thirds of all state constitutions contain “Lockean Natural Rights Guarantees” (LGs), provisions that declare people (1) have pre-political natural rights and (2) enumerate a few of those rights—usually life, liberty, property, and the pursuit of happiness, among others. Despite their longstanding and frequent use in court to protect individual rights, doubts have been raised about whether LGs are judicially enforceable like other provisions in state bills of rights. To address these doubts, and also to explore the origins of the various LGs, I investigated their drafting history, examining state constitutional convention records from the LGs’ origins in 1776 through conventions of the 1970s.
This investigation uncovered a rich history which I present and detail. The history includes numerous examples of explication and debate on LGs contemporaneous to their drafting and adoption. Regarding the initial question which spurred this project, I find that, on the whole, the drafters of LGs did believe them to be judicially enforceable, although this view was not monolithic. But beyond that question, the history demonstrates that the drafters thought LGs were hugely important and relevant to a multitude of issues. These include the people’s relationship to the state and the social contract, the various rights LGs protect, questions of race and slavery, voting rights, and even women’s rights. The debates over how LGs—and their close sibling, the Declaration of Independence—relate to race and slavery are particularly illuminating and confirm how pro-slavery and segregation forces never became comfortable with the stirring (even if hypocritical) words of George Mason and Thomas Jefferson.
I do not take a position on how much the words of the LGs’ various drafters (over the course of two hundred years in dozens of states) should weigh in discerning the LGs’ meanings. I provide this history—often for the first time in a secondary source—as a tool for jurists and scholars to draw from when making their own evaluations. I do take the position that LGs are central to how many constitutional drafters thought about the relationship between the individual and the state and that the drafters took a great deal of time and effort getting LGs just right. The passion delegates brought to these debates demonstrate that Lockean Guarantees are not mere “glittering generalities.” Instead, their words and drafting exemplify what is best about America.
Keywords: Lockean Natural Rights Guarantees, State Constitutions, Constitutional Conventions, Unenumerated Rights, Natural Rights, John Locke, George Mason, Declaration of Independence
Suggested Citation: Suggested Citation