Fundamental Rights in Early American Case Law: 1789-1859

Although the concept that some rights are fundamental has become indispensable in modern American jurisprudence, relatively little research has been published on the use of the term “fundamental rights” in early American case law. Aside from a monograph and a handful of articles, the information regarding courts’ understanding of the term in the late 18th and early 19th century must be gleaned from tangential sources, such as discussion on the Privileges and Immunities Clause, the Ninth Amendment, or philosophical or historical works on natural law.

See, e.g., MILTON R. KONVITZ, FUNDAMENTAL RIGHTS. HISTORY OF A CONSTITUTIONAL DOCTRINE (2001) (the only historical survey on the use of the term “fundamental rights” in American jurisprudence. Its heavy emphasis on the past one hundred years, however, makes it of only limited value to the historian of the early Republic); Douglas G. Smith, Fundamental Rights and the Fourteenth Amendment: The Nineteenth Century Understanding of “Higher” Law, 3 TEX. L. REV. & POL. 225, (1999) (considers the notion of fundamental rights as based on a “higher” or natural law through the work of 19th century American jurist John Norton Pomeroy); Jason S. Marks, Beyond Penumbras and Emanations: Fundamental Rights, The Spirit of the Revolution, and the Ninth Amendment, 5 SETON HALL CONST. L.J. 435, (1995); Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305, (1987); David Crump, How Do The Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 HARV..J.L. & PUB. POL’Y 795 (1996). More plentiful are studies dedicated to the history and development of the Privileges and Immunities Clause or the Ninth Amendment. See, e.g., THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT (Randy E. Barnett ed., 1989) (a collection of essays submitted by various scholars regarding the Ninth Amendment); BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT. A CALL FOR LEGISLATIVE AND JUDICIAL RECOGNITION OF RIGHTS UNDER SOCIAL CONDITIONS OF TODAY (1955) (arguing that the Ninth Amendment protects men from acts of government inconsistent with fundamental human rights and that these rights are not necessarily fixed in time, but are discovered “as the race becomes more evolved, and as the respect for the dignity of human life increases.”); DAVID SKILLEN BOGEN, PRIVILEGES AND IMMUNITIES. A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION (2003). studies dedicated to the history and development of the Privileges and Immunities Clause or the Ninth Amendment. See, e.g., RANDY E. BARNETT, THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT (1989), (a collection of essays submitted by various scholars regarding the Ninth Amendment); BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT. A CALL FOR LEGISLATIVE AND JUDICIAL RECOGNITION OF RIGHTS UNDER SOCIAL CONDITIONS OF TODAY (1955), (arguing that the Ninth Amendment protects men from acts of government inconsistent with fundamental human rights and that these rights are not necessarily fixed in time, but are discovered “as the race becomes more evolved, and as the respect for the dignity of human life increases.”); DAVID S. BOGEN, PRIVILEGES AND IMMUNITIES. A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION (2003).

The purpose of this article is partially to fill this gap by analyzing early American courts’ use of the term “fundamental right”. First, we will consider in what instances the courts used the term “fundamental rights” and what they considered those rights to be. Secondly, we will look at what the courts perceived to be the source of fundamental rights. Were the rights bestowed upon the individual person by the Constitution, by the natural or the common law, or by something else?

For this article I have used cases from every type of court, state and federal, as well as the Supreme Court. I have restricted myself to looking only at the cases from the first seventy years following the ratification of the United States Constitution. As might be imagined, fundamental rights jurisprudence during the first half of the 19th century is relatively scant. Most of early fundamental rights jurisprudence dwells covertly in the dicta of obscure cases, now long forgotten. But there is a reason for undertaking an analysis of this era nevertheless. Although the mention of the term fundamental rights in case law between 1789-1859 is few and far between, this scarcity is compensated by the unparalleled access that the early courts had to the thought and intentions of the Founding Fathers. Therefore, if for no other reason than its antiquity, some type of purview of fundamental rights in this era is necessary to fill the lacunae of scholarship, even if it turns out that the fruit harvested from such an undertaking is relatively modest.

The pedigree of fundamental rights in Anglo-American legal history is long and complicated. The first mention of the term “fundamental right” in print is in a 1611 pamphlet entitled: A record of some worthy proceedings in the honourable, wise, and faithfull Howse of Common in the late Parliament.

ENGLAND AND WALES, PARLIAMENT, HOUSE OF COMMONS, A RECORD OF SOME WORTHY PROCEEDINGS IN THE HONOURABLE, WISE, AND FAITHFULL HOWSE OF COMMON IN THE LATE PARLIAMENT (1611). This pamphlet numbers forty-eight pages and was possibly printed in Amsterdam by one G. Thorp (this is a conjecture from Pollard and Redgrave’s: A Short-Title Catalogue of Books Printed in England, Scotland, and Ireland and English Books Printed Abroad (1473-1640). There is evidence that it includes a record of a speech given by Sir Francis Bacon to the King laying out certain grievances.

William Prynne, a Puritan and lawyer, inveighed against the trampling of fundamental rights by Cromwell’s Commonwealth in his work: A summary collection of the principal fundamental rights, liberties, proprieties of all English freemen.

WILLIAM PRYNNE, A SUMMARY COLLECTION OF THE PRINCIPAL FUNDAMENTAL RIGHTS, LIBERTIES, PROPRIETIES OF ALL ENGLISH FREEMEN (1656). Reprinted in STUART E. PRALL, THE PURITAN REVOLUTION: A DOCUMENTARY HISTORY 268-279 (1968).

1) The Privileges and Freedom of their Parliaments and their Members; 2) The safety and liberty of their Persons; 3) The property of their Estates; and 4) The Free course of Common Law, Right, and Justice.

This list is consistent with William Blackstone’s understanding of the fundamental laws of the English nation 130 years later; see, infra note 43.

Arguing from the opposite perspective is the pro-Cromwellian Puritan Isaac Penington who discusses fundamental rights in his work: The fundamental right, safety, and liberty of the people.

ISAAC PENINGTON, THE FUNDAMENTAL RIGHT, SAFETY, AND LIBERTY OF THE PEOPLE (1651).

As is clear from the preceding examples, when the judges of early America referred to fundamental rights they were not inventing a new term, but were recalling an aspect of their own great Anglo-American legal tradition. When lawyers arguing before the modern Supreme Court invoke the term fundamental right in order to win their client’s case, it is unlikely that they realize the historical foundation upon which the term and idea lay. Even the Court itself may not always be fully cognizant of the term’s ancient pedigree or the historical conditions which served to shape and define it. The passage of time inevitably leads to a certain degree of memory loss unless one deliberately seeks to revisit that which one once had a clear idea. This article’s purpose is to revisit some of the ancient ideas pertaining to fundamental rights through the lens of early American caselaw. The modern development of fundamental rights jurisprudence can then be measured by some historical standard and, if one is persuaded by historical evidence, judge it according to its conformity or deviation from this standard.

The use of the term “fundamental right” makes its first appearance on the stage of American jurisprudence in 1793 in the Virginia case Kamper v. Hawkins.

1 Va. Cas. 20 (1793). This case was decided in the General Court of Virginia. For a brief history of this court see, Hugh F. Rankin, The General Court of Colonial Virginia: Its Jurisdiction and Personnel. THE VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY. Vol. 70, No. 2, Apr., 1962.

The question presented to the court was whether an act passed by the General Assembly granting the lower district courts power to provide certain equitable relief was unconstitutional and therefore void. Predating Marbury v. Madison

5 U.S. 137 (1803).

Ultimately, the court held that the act violated the judicial structure instituted by the Virginia Constitution and deemed that the district court was unable to grant injunctive relief. What makes this case so pertinent for our purposes, however, aside from its interesting holding on judicial review, is its mention of fundamental rights. Judge James Henry, a former delegate to the Continental Congress, writing his own opinion in the case, is the first judge to use the term fundamental rights in an American judicial opinion. Referring to the deputies of the Constitutional Convention, he states:

Henry refers to the Constitution as having reserved fundamental rights to the people. This type of language is very common in early case law. For example, courts and advocates refer to reserving, securing,

See State v. Sheriff of Charleston Dist., 1 Mill Const. 145, 72 (1817); Stokes v. Scott County, 10 Iowa 166, 172 (1859); Commonwealth v. Milton, 12 B. Mon. 212, 220 (1851).

Judge Henry in Kamper also refers to certain rights that are inherent in the people, such as the right to a trial by jury, and the right to worship freely without the interference of government.

Kamper v. Hawkins, 1 Va. Cas. 41.

Another important case from the 18th century that refers to fundamental rights is Zylstra v. Corporation of the City of Charleston.

Zylstra v. Corporation of the City of Charleston, 1 Bay 382 (S.C. 1794).

His fellow colleague, Judge Waites, states that even if such power were present, the conviction was void because it was contrary to the Constitution of the State of South Carolina, which guarantees to every freeman a trial “by the judgment of his peers, or by the law of the land” in every case in which he is in jeopardy of losing life, liberty, or property.

Id. at 383-84

Judge Waites then proceeds to offer a lengthy and interesting note on the meaning of the law of the land in the State Constitution, in the course of which he cites Dr. Francis Sullivan’s Commentary on the Magna Carta.

Id. at 383-85. (J. Waites) (“The words the law of the land, mean the common law, or parliament down to the time of Edw. 2d which are considered as part of the common law: vide Hales’s H.C.L. 7 which doth not in all cases require a trial by peers.” It will be sufficient to point out in general, the principle cases where this lex terrae, or, as Lord Coke calls it, the due process of law, superseded the trial per pares. “First then, if a man accused of a crime pleads guilty, so that there is no doubt of the fact, it would be absurd and useless delay to call on a jury to find what is already admitted; accordingly,by the law of the land, judgment is given on the confession. So in a civil action, if the defendant confesses the action, or makes default, (in a suit on a bond) no jury is requisite. So, if both parties plead all the matters material in a case, and a demurrer is joined, the Judges shall try the matter of right depending on the facts admitted, and give judgment according to law, without a jury.” “The inflicting of punishment at the discretion of Courts for all contempts of their authority, is also part of the law of the land, being founded in the necessity of enforcing due respect and obedience to the courts of the justice, and supporting their dignity.”

Judge Waites then responds to the objection that the Court of Wardens was created prior to the making of the Constitution of South Carolina, and therefore can not be bound by it:

This passage is pregnant with meaning concerning the origin and import of fundamental rights. First of all, Waites states emphatically that the Constitution did not create this fundamental right - it existed before the creation of the Constitution. Its origin is in the common law, of which the people of America are direct descendants.

Furthermore, the common law is not only the law that existed at the time that the colonists revolted against their mother country, but is the law from time immemorial.Therefore, in order to ascertain the origin of fundamental rights - in this case the right to a trial by jury - Waites peers into the dawn of English history, and finds there the basis for the people’s rights of his own time.

The use of the term “fundamental rights” was slow to proliferate in early American case law. In the entire first half of the 19th century the term was only used in twenty-seven court opinions, compared to 412 opinions in the latter half of the century.

This count was accomplished after searching for the term “fundamental right” on Westlaw during the pertinent periods. Such a count would have been well-nigh impossible prior to a computerized database.

Justice Kent, in his discussion regarding the freedom of the press, states:

This passage is interesting because it acknowledges the right of the freedom of the press as a fundamental right of purely American origin, with no legal precedent in English law. This insight will be discussed later on when we show that the American fundamental rights tradition not only incorporates but develops beyond the English one.

See infra Part VII.

After declaring that the freedom of the press is a fundamental right, Kent goes on to illustrate by way of example:

Another interesting case from this era is the 1818 case Juando v. Taylor.

Juando v. Taylor, 13 F. Cas. 1179 (1818. In this case, Commodore Thomas Taylor, formerly a citizen of the United States, claimed to have renounced his citizenship and sworn allegiance to the government of Buenos Aires. Therefore, he argued, he could not be placed in custody pending a legal suit against him regarding the capture of Spanish property on the open seas against whom Buenos Aires was at war. Judge Van Ness agreed and released him on bail.

To round out this discussion of fundamental rights in this era we can briefly mention the 1802 case Harris v. Huntington.

Harris v. Huntington, 2 Tyl.129, 1802 WL 777, (Vt.1802).

A few interesting observations can be gathered from the use of the term “fundamental right” in this opinion. First of all, we see here an echo of what was said in Zylstra, namely, that a fundamental right is a common law right planted deep in the soil of English history. The rights enumerated in these two opinions - the right to a trial by jury and the right to petition for a redress of grievances - are both found in some form in the Magna Carta.

See, A. E. DICK HOWARD, MAGNA CHARTA. TEXT AND COMMENTARY, clause 39: “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” And clause 52: “If anyone has been disseised or deprived by Us, without the legal judgment of his peers, of lands, castles, liberties, or rights, We will immediately restore the same, and if any dispute shall arise thereupon, the matter shall be decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace.”

The 1820s is the first decade that the U.S. Supreme Court uses the term “fundamental right.” It comes about in a rather uneventful way in the case of Green v. Biddle,

Green v. Biddle, 21 U.S. 1 (1823).

However, the more important and interesting case from this era is Corfield, decided by Bushrod Washington, nephew of George Washington, while riding the circuit in the federal courts. This case has become an indispensable citation in discussions regarding the Privileges and Immunities Clause.

BOGEN,supra note 1, 23-27 (noting that although Washington’s enumeration of various privileges and immunities was dicta, his list “became the reference point for courts and congress for almost a century.”).

This case is justly famous for several reasons. For one, it is the first time that a Supreme Court justice addressed at length the significance of the Privileges and Immunities Clause.

David R. Upham, The Meaning of the “Privileges and Immunities of Citizens” on the Eve of the Civil War, 91 NOTRE DAME L. REV. 1117 at 1127 (2016).

The case was about whether an act prohibiting non-residents of New Jersey from fishing and taking oysters within the State was a violation of the Privileges and Immunities Clause. Washington’s reflection on the meaning of this clause, though often repeated, is worth reproducing here in full:

What can be inferred from this extensive discussion on fundamental rights? In order to do justice to this rich paragraph, it is necessary to analyze it from a number of different angles. Washington separates his enumeration of rights into two groups, one that is made up, as he puts it, of general heads, and another that consists of individual specific rights that are presumably derived from the first group. The general heads that Washington identifies are:

Protection by the Government

These rights are essentially an echo of the terms Life, Liberty, and the Pursuit of Happiness that are found in the Declaration of Independence. If any rights are fundamental, these are, and provide the cornerstones not only to the American legal tradition, but to the English one as well.

See BLACKSTONE,supra note 16, 122-145. Blackstone, in his Commentaries on Laws of England, delineates a similar scheme in his chapter on “The Absolute Rights of Individuals.” He begins by distinguishing absolute from relative rights of persons. Those rights are absolute “which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other.” Furthermore, unlike other civil rights, absolute rights are intrinsic to man even in a primitive state, and regardless of whether he is a part of society or out of it. “And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.” Blackstone considers these rights rooted in the natural law, and belong to man as “one of the gifts of God to man at his creation, when he endued him with the faculty of free-will.” Interestingly, however, he also declares these prerogatives as the “absolute rights of every Englishman” and thus enshrined in English statutes and common law. The fact that there is an overlap between the natural law and the law of England should come as no surprise, given that in Blackstone’s time it was held that the civil law was a reflection and more particular application of natural principles established by God. Indeed, in Section the Third, of the Laws of England, Blackstone notes that a law contrary to reason or divine law, is not law at all and need not be followed, even when it has stare decisis in its favor. “For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that is it not the established custom of the realm, as has been erroneously determined.” Following his enumeration of the three absolute rights, Blackstone proceeds to explain their contents and derivatives. For example, under the heading of the right to personal security, Blackstone notes that this includes the right to life and its sustenance thereof (including the right of necessary support for the poor), the right to be free of practices that compromise one’s health, and the right to the security of one’s reputation or good name. Under the heading of personal liberty, Blackstone includes the right of changing one’s place of residence, the right to due process in criminal proceedings (including trial by one’s peers), the right to petition for a writ of habeas corpus, and the right to be free from unreasonable arrest and excessive bail. Finally, under the heading of property, Blackstone includes the right to possess, use and dispose of one’s possessions, the right to be fairly compensated for property appropriated by eminent domain, and the right to be taxed only at that rate established by one’s own representatives. Beyond these three absolute rights and their derivatives, Blackstone adds a few more rights which he deems “auxiliary” because, without them, the absolute rights would be “dead letters” and unenforceable. These include: the established limits to the king’s powers, the right to apply to the courts of justice for redress of injuries, the right to petition the government for a redress of grievances, and the right to bear arms. These many rights all fall under the umbrella of absolute and well summarize the content and theory of this article, encompassing, as they do, almost every single right raised by the early American courts to the level of fundamental. The courts are almost always unwilling to go beyond Blackstone. The rare exceptions are the right to freedom of the press and worship, the right to expatriate, and the right to vote, which are absent in Blackstone’s chapter. The right to bear arms, while noted by Blackstone, was not explicitly mentioned as a fundamental right by any early American court, although it certainly appeared in numerous State Constitutions and of course the Federal Constitution.

If Washington had merely recited the general rights already found in the Declaration of Independence, however, later courts would not have taken much notice. The fact that he was willing to expand on his idea of privileges and immunities and give them a specific content ensured that later courts and scholars would continually return to Corfield while discussing issues such as privileges and immunities and fundamental rights.

See,e.g., Slaughter-House Cases, 83 U.S. 36, 75 (1872); McCullough v. Brown, 41 S.C. 220, 480 (1894); State v. Palko, 122 Conn. 529, 325 (1937).

Although Washington clearly states that his list is not exhaustive of those fundamental rights that exist, he does explicitly mention the following:

The right to travel and change residency

After reviewing this list of rights, what is noteworthy about them is that only one of them, the right to a writ of Habeas Corpus, is found in the Constitution, and none of them are in the Bill of Rights. Was Washington’s selection deliberate? Did he assume, perhaps, that every citizen could take for granted that the Bill of Rights was an enumeration of their fundamental rights, and therefore considered it redundant to repeat them here? Did he perhaps omit mention of the Bill of Rights because Coryell was a case concerning state law? Or was his intention, in drafting this opinion, to specifically identify and give some shape and form to those unenumerated rights of the American people, thereby trying to breathe life into a largely ignored Clause of the Constitution?

However the case may be, Washington was confident that fundamental rights did exist beyond the perimeter of the Constitution and was capable of defining some of them. In Washington’s list, it is difficult not to see Blackstone at work, and in all likelihood Washington was trained in the law using Blackstone’s text.

See, infra Part VI.

Washington’s opinion is an important moment in the history of fundamental rights jurisprudence because it dispenses from any strictly positivist interpretation of such rights, and acknowledges a kind of American lex non scripta, which, in many ways, echoes the absolute rights jurisprudence of English law

Until now we have only read about fundamental rights vesting in the individual person, either by way of his citizenship or because of his intrinsic dignity as a member of the human race. One may be surprised to know that starting in the 1840s there are several cases that see fundamental rights vesting also in the government, which according to several opinions has the fundamental right to appropriate property by means of eminent domain.

In Proprietors of the Cemetery of Spring Grove v The Cincinnati, Hamilton, and Dayton Railroad Company

Proprietors of the Cemetery of Spring Grove v. The Cincinnati, Hamilton, and Dayton Company, 1 Ohio Dec.Reprint 316 (1849).

Another right that makes its appearance on the stage of American case law starting around this time is the right that each citizen have, as Judge Read of the Supreme Court of Ohio puts it, his “day in court.”

Robb v. Irwin’s Lessee, 15 Ohio 689, 711 (1846).

Similarly, in the 1859 case of Phelps v. Rooney,

Phelps v. Rooney, 9 Wis. 70 (1859).

Chief Justice Bartley of the Supreme Court of Ohio, in his own dissent in State ex rel. Evans v. Dudley,

State ex rel Evans v. Dudley, 1 Ohio St. 437 (1853).

Having discussed some of the enumerated fundamental rights of this era, some of which we had already been familiar, and some which appear to be voiced for the first time in a court opinion, we turn to the question that we introduced at the beginning of this article: what do the courts consider to be the origin of fundamental rights? As we saw earlier, the judges from the early days of our Republic did not shy away from addressing this topic.

See, e.g., supra note 24 and note 34.

In the case of Stokes v. County of Scott,

Stokes v. County of Scott, 10 Iowa 166 (1859).

What is most interesting about this case is the court’s reliance on natural law as the basis of a fundamental right.

The idea of a natural law or a law of nature is as ancient as Western Civilization itself. Edwin S. Corwin. The “Higher Law” Background of American Constitutional Law 42 HARV. L. REV. 149, 155 (1928). “Building on Socrates’ analysis of Sophistic teaching and Plato’s theory of Ideas, Aristotle advanced in his Ethics the concept of “natural justice.”” It was, however, the writings of Cicero that codified the concept of natural law as a part of the West’s permanent legal heritage and in which form it was transmitted to the Medieval schoolmen. See, Id. at 157-158; J. M. KELLY, A SHORT HISTORY OF WESTERN LEGAL THEORY 60-61, (1992). Following the intellectual syntheses of the Middle Ages, the West suffered the trauma of intellectual disunity as a result of the division of Christendom. However, even following the Protestant Reformation the idea of natural law was retained, albeit subjected to widely different interpretations. For example, the Protestant jurists Hugo Grotius and Samuel Pufendorf, uncoupled the natural law from its theological underpinnings and conceived of it as a purely secular law. This prompted Grotius to famously state that even if God did not exist, the natural law would still exist by virtue of man’s nature. By the time the United States was founded, the ideas circulating regarding natural law were so splintered that one cannot be sure that two men writing about the natural law meant the same thing at all. Yet despite its varying interpretations, most jurists, and indeed the Founding Fathers themselves, found it expedient to invoke the authority of natural law in order to justify their laws and their acts. See,e.g., Jeffrey D. Jackson. Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights. 62 OKLA. L. REV. 167, 179-180 (2010) (in which he states that Lockean ideas regarding the natural law were influential in Thomas Jefferson’s drafting of the Declaration of Independence). By the 19th century, although appeal to natural law was on the wane it was still applied from time to time in court opinions. See, infra, note 65. John Norton Pomeroy, an American jurist and author of “An Introduction to Municipal Law” published in 1864 acknowledges natural law as one of the sources of municipal law. See, Smith,supra note 1, 230. Interestingly, however, and indicative of this positivistic age, Pomeroy bifurcates natural and municipal law and plainly states that the two, while ideally ought to coincide, in practice never do. He then comes to the astonishing conclusion that when the natural law and municipal law contradict one another, the natural law must give way in favor of the municipal law. Id. at 274. Pomeroy thus accomplishes a perfect about-face of the Medieval notion of the supremacy of the natural law!

The Ohio Supreme Court in 1853 expands upon the notion of the natural law being the foundation upon which fundamental rights are built. In The Bank of Toledo v. City of Toledo

The Bank of Toledo v. City of Toledo, 1 Ohio St. 622 (1853).

This short passage includes a number of ideas of interest, such as: fundamental rights exist anterior to civil government; they are not bestowed by the government; the purpose of the government (and by extension the U.S. Constitution), is to secure and protect those rights; and finally, the general substance of these rights are the rights of personal security, liberty, and property.

The court employs several different terms in discussing fundamental rights. It calls the right of private property an original right. It refers to common rights and natural justice. Finally, it quotes with approval a speech made by the Irish Member of Parliament Edmund Burke on the occasion of an introduction of a bill by Charles James Fox for the purpose of repealing the charter of the East India Company:

Notice the allusion, again, to the Magna Carta, the reference to the natural rights of men, and to the rights of Englishmen.

Aside from opinions that the natural law is an origin of fundamental rights, another prevalent notion in early case law is that the English common law is the source and guarantor of such rights. Thus, as we saw in Zylstra, Judge Waites refers to the trial by jury as a common law right.

Zylstra, 1 S.C.L. at 388-389. (1794)….

This notion of the common law as a source of ancient rights was popular among the generation in which the Constitution was framed.

See,e.g., Edward S. Corwin,The “Higher Law” Background of American Constitutional Law, 42 HARV. L. REV at 170 (noting that Thomas Jefferson quaintly theorized that the American constitutional system only restored to mankind the long lost polity of Anglo-Saxon England); Jeffrey D. Jackson,Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 OKLA. L. REV. 167 (noting that many of the proposed rights that would later find their way into the American Bill of Rights had a long pedigree in English law).

The understanding of the English common law shared by the Founding Fathers and early jurists was primarily obtained from two sources: Sir Edward Coke’s Institute of the Laws of England and Sir William Blackstone’s Commentaries on the Laws of England.

Jeffrey D. Jackson,Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 OKLA. L. REV. at 200.

This review of early American case law yields two answers to our question regarding what sources the courts turned to in order to discover and articulate fundamental rights. The first that we encountered was the natural law. As stated earlier, however, pinning down the exact contours and philosophical bases of this law in early American thought is a protean battle. The unitary concept of natural law present in the ancient and medieval worlds was largely shattered by the modern era and did not carry the same gravitas for judicial lawmaking in the 19th century as it had in earlier centuries.

See, e.g., THOMAS PAINE, THE RIGHTS OF MAN (1791). Writing in the 18th century, Paine’s argument for the transformation of the world order rests upon the natural rights of man. Posing the question as to how man came by these rights, he answers: The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is, that they do not go far enough into antiquity. They do not go the whole way. They stop in some of the intermediate stages of an hundred or a thousand years, and produce what was then done, as a rule for the present day. This is no authority at all. If we travel still farther into antiquity, we shall find a direct contrary opinion and practice prevailing; and if antiquity is to be authority, a thousand such authorities may be produced, successively contradicting each other: But if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker. What was he then? Man. Man was his high and only title, and a higher cannot be given him…We are now got at the origin of man, and at the origin of his rights.

The second source of fundamental rights that we encountered was the English Common Law, as especially understood through the writings of Sir Edward Coke and Sir William Blackstone. To this can be added the Magna Carta, as well as a flurry of other documents that sought to protect certain fundamental rights and were integrated into the common law. These include: the Petition of Rights of 1628, the Habeas Corpus Act of 1679, the English Bill of Rights of 1689, the Toleration and Mutiny Acts of 1689, and the Settlement Act of 1701.

See, Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305 n.76.

It would be a mistake, however, to view these two sources of fundamental rights as mutually exclusive of one another. Blackstone sees natural rights as begetting and supporting the common law. In his treatment of the Absolute Rights of Individuals he begins by explaining that:

These rights are, therefore, instilled in man by nature, and are antecedent to society and government. They are, indeed, one of the gifts of God, as he explains:

Blackstone, however, considers this natural liberty to be in a vulnerable state without the protection of government, and therefore observes:

In this last passage, Blackstone betrays a Rousseauian impulse, seeing society as taking away a part of man’s natural liberty as the price for bestowing its benefits. Thomas Paine, in his Rights of Man, expresses similar sentiments, but is less willing than Blackstone to compromise those natural rights of man as the price of better protection. He writes:

Blackstone, therefore, like Paine, finds the bases of absolute rights in the natural law as endowed by the Creator of the Universe. However, he does not end his discussion there, but proceeds to explain the role of the English common law in articulating and securing these rights:

Blackstone then contrasts the “nearly perfect” English system of law and government with the arbitrary and despotic power of Continental Europe, which tramples upon the fundamental rights of human beings.

Id. at 127. “Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of imperial law; which in general are calculated to vest and arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees.”

Therefore, for Blackstone it is not a question of whether fundamental rights proceed from the natural law or the common law. Both laws taken together form the backbone of the absolute rights of Englishmen. While the natural law endows man with fundamental rights, the English common law protects those rights and gives them legal effect. Without the common law, the natural rights would still exist, but there would be no way of securing them in practice or arbitrating them. In order to properly understand the thinking of the early American courts when it comes to fundamental rights, it is necessary to appreciate this rich texture of legal thought that Blackstone articulates so well in this section of the Commentaries and which most likely comprises the intellectual milieu in which the early judges of America were situated.

In this next part we will step back a moment from the individual cases that we have reviewed and look at the specific enumerated fundamental rights mentioned by the courts, their frequency, and their correlation, if any, to the great Anglo-American legal documents: the Magna Carta, the English Bill of Rights, and the American Bill of

Rights. We will also note whether the fundamental rights mentioned in American case law were deemed absolute rights in Blackstone’s Commentaries.

First, it would be helpful to conduct a statistical analysis of early American case law in order to better understand the general layout of the terrain between the period of Kamper v. Hawkins in 1793 (the first mention of the term fundamental right), and the latest case that we reviewed, Stokes v. Scott County in 1859, just two years prior to the Civil War. The following chart shows the frequency per decade in which the term “fundamental right” appears in a court opinion:

These statistics have been generated by searching for the exact term “fundamental right” in the Westlaw database between the relevant years. Such a calculation prior to computerized databases would have been well-nigh impossible.

As can be deduced from reviewing the chart, the term was very scarce during the first 60 years of American jurisprudence. During the 1850s it began to pick up some steam, and after the Civil War it was not infrequently mentioned. As might be guessed, the term continued on its path of increasing popularity, and in the 1990s was mentioned an astounding 11,308 times. This makes the current endeavor somewhat challenging given the paucity of fundamental rights language. However, the rarity of the term is somewhat balanced out by the privileged place that early American case law should hold in legal theory.

The mentions of fundamental rights in the U.S. Supreme Court opinions of the first half of the 19th century are scarcer still, with only one occurrence, excluding Corfield.

Green, 21 U.S. 1 (1823).

Conspicuously absent in this list is mention of the right to bear arms, the right against unreasonable searches and seizures, the right not to be subjected to cruel or unusual punishments, and the right to privacy. We can say conspicuously because the first three are explicitly enumerated in the Bill of Rights, and the last one is pervasive in late 20^th century case law. We can now look and see which of the fundamental rights mentioned above are found in some form in the Magna Carta or English or American Bill of Rights.

Edward S. Corwin,The “Higher Law” Background of American Constitutional Law, 42 HARV. L. REV. at 380. “From…the Magna Carta, through the English Declaration and Bill of Rights of 1688 and 1689, to the Bill of Rights of our early American constitutions the line of descent is direct.” The Magna Carta, or great Charter, has almost a mythical grandeur in Anglo-American legal history. Id. at 175 (stating that the constitutional fathers regarded the Magna Carta as having been from the first a muniment of English liberties, largely owing to the revival of respect for the Magna Carta initiated by Sir Edward Coke). Coke states in his Institutes of the Laws of England: “It is called Magna Charta, not that it is great in quantity, for there be many voluminous charters commonly passed, specially in these later times, longer then this is; nor comparatively in respect that it is greater than Charta de Foresta, but in respect of the great importance, and weightiness of the matter.” COKE, INST., 2nd Part. Although the Magna Carta was originally somewhat limited in scope, “the range of classes and interests brought under its protection widened, its quality as higher Law binding in some sense upon government in all its phases steadily strengthened until it [became] possible to look upon it in the fourteenth century as something very like a written constitution in the modern understanding.” Corwin,supra note 108, at 177. “Thus the vague concept of “common right and reason” is replaced with a “law fundamental” of definite content and traceable back to one particular document of ancient and glorious origin.” Id. at 378. The English Bill of Rights, passed by Parliament in 1689 and laid down to protect English liberties (or more accurately Protestant English liberties), also stands as a foundational document in Anglo-American constitutional law. The document was not perceived to have created new rights, but rather to have reinstated rights native to Englishmen and purportedly lost temporarily under the reign of the Catholic sovereign James II. See Jeffrey D. Jackson,Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 OKLA. L. REV. at 176-177. As Blackstone notes, the Bill ended with these words: “and they do claim, demand, and insist upon, all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom.” See BLACKSTONE,supra note 16, 128. Finally, we come to the American Bill of Rights of 1791, obviously the most important document in American jurisprudence pertaining to fundamental rights. As has been noted by scholars, however, this document is not wholly original, and echoes in many ways the English Bill of Rights of a hundred years earlier. See, e.g., Jackson,id. at 192-193 (noting that many of the rights included in the American Bill of Rights were also included in the English Bill of Rights, such as the right to petition for redress of grievances and the right to bear arms). Therefore, it is reasonable to conclude that the American Bill of Rights was partially modeled on and developed from its English predecessor.

First, we begin by looking at one of the most commonly cited fundamental rights in early American case law, the right to a trial by jury. Cited four times by court in the first 70 years, it has proven to be one of the most commonly researched and cited rights in the American legal system.

A search under the term “jury trial” in the Harvard Libraries turns up 2,412 titles, compared with 1,793 for “right to privacy”, 960 for “bear arms”, and 330 for “right of worship.”

This cherished right, though absent in the English Bill of Rights, appears three times in the U.S. Constitution. First in Article III, Section 2:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.

U.S. CONST. art. III,§2.

And in the Seventh Amendment:

James Madison finds the origin of this right in the positive rather than the natural law, but nevertheless states that the right to a trial by jury is “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Calvin R. Massey,Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. Footnote 41, Quoting 1 ANNALS OF CONG. 454 (J.Gales & W. Seaton ed. 1836) (remarks by Elbridge Gerry).

Another fundamental right commonly cited in early American case law is the right to have free access to the courts, both to seek redress of wrongs and to defend oneself from criminal or civil accusation. This right was cited six times in the 70 year period that we covered and appeared also in Bushrod Washington’s list of fundamental rights in Corfield.

Corfield, 4 Wash. C. C. 371 at 552 (1823).

This is, in essence, an elaboration on the very brief, but fundamental clause in the Magna Carta which reads: To no one will We sell, to none will We deny or delay, right or justice.

See, MAGNA CARTA, supra note 37, clause 40.

Next is a right akin to the free access of the courts, that is the right to petition the government for a redress of grievances, a fundamental right which, significantly, appears in every single document reviewed in this section. It is also in Blackstone’s commentaries.

“If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house or parliament, for the redress of grievances.” See BLACKSTONE, supra note 16, 143.

The right is repeated in a more succinct form in the English Bill of Rights which reads:

And again, in the First Amendment of the American Bill of Rights:

Finally, as we saw above, early American case law pays tribute to this fundamental right, as when the court in Harris proclaimed:

Our English ancestors have ever held the privilege of petitioning the King and Parliament for redress of grievances as an inherent right.

Harris, 2 Tyl.129, 1802 WL 777, 140-141 (Vt.1802).

Not every right in the Magna Carta or the English and American Bill of Rights is mentioned as a fundamental right in early American case law. Contrariwise, not every right deemed fundamental in early case law appears explicitly in these three documents. For example, the Magna Carta and the English and American Bill of Rights include provisions barring excessive punishment.

“A free man shall be amerced for a small fault only according to the measure thereof, and for a great crime according to its magnitude, saving his position; and in like manner a merchant saving his trade, and a villein saving his tillage, if they should fall under Our mercy.”See, MAGNA CARTA, supra note 37, clause 20. “Excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” ENGLISH BILL OF RIGHTS, ARTICLE 10. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII.

Similarly, there are a number of fundamental rights mentioned in early case law that do not appear in one or more of these monumental documents. For example, the right to vote is mentioned as a fundamental right in Barker v. People,

Barker, 3 Cow. 686 at 706 (1824).

Therefore, it can truly be said, fundamental rights law in early America, though deeply rooted in the Anglo-American legal tradition was not identical to this ancient inheritance. The rights protected by the Magna Carta and English common law were also rights protected by the American courts and Constitution, but they were not exhaustive of American’s fundamental rights. The American Bill of Rights, in particular, not only added to the Anglo-American tradition, but in some ways even altered it.

Even during Blackstone’s time, the Freedom of Religion was not recognized as a fundamental right under English law. For example, in his chapter on Public Wrongs he comments upon the restrictive religious laws of England, both old and new. He explains that although non-conformity to the worship of the Established Church need not be rigorously prosecuted, nevertheless “care must be taken not to carry this indulgence into such extremes, as may endanger the national church.” See BLACKSTONE, supra note 16, IV, 51-52. Nevertheless, he shows much greater intolerance towards Roman Catholics, who he labels “Papists”, and of whom he remarks that as long as they acknowledge the Pope as the Head of the Church, the laws laid upon them will be enforced with rigor. Id. at 54. This includes being prohibited from holding office or employment; keeping arms in their houses; coming within ten miles of London on pain of a 100 l. fine; bringing any action at law or suit in equity; traveling above five miles from home, unless by license, upon pain of forfeiting their goods; and coming to court under pain of a 100l. fine. Id. at 55.

A voyage through early American fundamental rights case law is both illuminative and rewarding. Although practically none of these decisions are of consequence for establishing the present-day state of law, they are invaluable resources for getting to know the mental processes of our early courts and to connect the dots between our fundamental rights law and that of the ancient Anglo-American legal tradition. It is difficult to arrive at any hard and fast conclusions simply from the few cases covered here, but there is enough consistency and cohesion among them that I do not think it is untoward to at least propose a few affirmations.

For one thing, it is abundantly clear that the early American courts were not working in a vacuum of political and legal thought. As mentioned earlier, many of them were well acquainted with Sir Edward Coke and Sir William Blackstone, and many times consciously adopted their thinking and even their exact words into their own judicial decisions. The fundamental or absolute rights delineated by these two towering figures played no small role, not only in the early court system, but in the drafting and promulgation of the Declaration of Independence and U.S. Constitution. In looking at the Constitution we behold not just the creative product of late 18th century colonial philosophers and statesmen, but an accumulation of sundry rights gleaned from nearly a millennium of English experience. This experience was the foundation that gave shape and form to the Constitution.

From this first assertion, a second one can be deduced, namely, the early American courts considered fundamental rights law to be bounded and defined by something beyond themselves. The judges were extremely conscious of being a part of the great Anglo-American legal tradition, and when the legal question presented before them entailed some issue of fundamental importance, they easily and without hesitation turned to the Magna Carta, the English or American Bill of Rights, Coke, Blackstone, or anything else they deemed representative of this tradition to support and guide their opinion. Additionally, some judges were perfectly comfortable invoking the natural law when devising their opinions, and recognized this higher law as a sure basis for elucidating certain rights that belonged to all men. No court considered itself the dispenser of these rights and no court apparently felt itself authorized to make up new fundamental rights.

This leads us to a final point. Although Bushrod Washington states that the fundamental rights are more tedious than difficult to enumerate, it is quite clear that such rights can not be multiplied ad infinitum. Even Washington’s list itself is fairly uncreative and for the most part adopts those rights already well known to exist in English law. So what are these rights? Are they established once and for all, or is it possible to develop new rights from the preexisting ones? Or is it perhaps possible to create entirely new rights, without precedent, simply by appealing to the “spirit” of the Anglo-American tradition. It is useful at this juncture to point out three things.

First, the fundamental rights of Americans must befinite in number. If everything becomes a fundamental right, then the sense of the word “fundamental” loses its meaning altogether. Judging from early case law and the great Anglo-American documents, the fundamental rights are relatively few and appear to revolve in one way or another around the general rights of life, liberty, and property.

Second, these rights are discoverable from the ancient sources. Fundamental rights are not rights that lie dormant for centuries only to surprisingly and spontaneously appear at a convenient moment of social upheaval or controversy.

Therefore, any scholar or judge interested in the question of fundamental rights would do well to become acquainted with the ancient tradition of Anglo-American fundamental law, and when interpreting the Constitution must not lose sight of the fact that this document is only one in a tradition of similar documents, and can only rightly be understood when placed within this context.

Third, fundamental rights are nameable. This may seem like an obvious observation, but if conjoined with the two assertions above, it leads one to the recognition that early fundamental rights case law is relatively modest in its ambitions. The fact that fundamental rights can be named, defined, and applied, and furthermore, that the same rights are usually revisited time and again, leads one to the conclusion that fundamental rights law must not become a nebulous field of ambiguous formulas and tests and hollow speculations. Compared to the vast and complicated morass of modern fundamental rights jurisprudence, the ancient Anglo-American legal tradition’s view of fundamental rights is fairly cut and dry. This tradition sees the Magna Carta and English common law as the fount of these rights. It considers the American Bill of Rights as an indispensable supplement. Finally, it may look to the natural law from time to time to better understand the exact contours of this tradition. However, even though many are the sources that one may consult to better understand what these fundamental rights consist of, the actual rights remain easily identifiable by a cursory look at the monumental documents of Anglo-American law: the right to trial by jury, access to the courts, the freedom of religion, due process, the right to petition for grievances, the right to have punishment proportionate to the crime, and several more which can be found on the table. The early American courts rarely venture beyond these, and if they do, it is usually a right already present in Blackstone or some other facet of the ancient common law.

A modest ambition is the best way to describe early American fundamental rights law. Compared to the ever-burgeoning fundamental rights litigation in contemporary courts, the Founding Fathers, and the early courts that interpreted them, were far more limited in their scope. The individual States, like the ancient Sovereign of England, were given great leeway in enacting laws and regulating the lives of their citizens. It was bounded by natural law and the great protections of the Anglo-American legal tradition. These protections may be variously qualified as fundamental rights, absolute rights, or privileges and immunities. The specific content of these rights did not change a great deal from age to age. Beginning with the Magna Carta, until the founding of the American Republic, their scope, though deemed absolute, was relatively narrow. With the passage of the American Bill of Rights their application was somewhat widened, but hardly overturned or left as an open book. If anything is discoverable, it is discoverable because it is already couched in this tradition. The early case law confirms this, and lends credence to the theory that fundamental rights law must tend towards originalism in its interpretation, meaning, it must look to the origins of American fundamental rights in order to properly interpret its meaning for today. This task, though perhaps a laborious one, has the advantage that it is in conformity with the path initially struck by the early fathers of our judicial system.