State Constitutions and the Declaration of Independence

Pam Karlan: This is a special episode of Stanford Legal, a recording from one of the many special discussions that take place here at Stanford. Keep following the feed for our regular programming

Michael McConnell: Welcome to the Declaration at 250, a special series from the Stanford Constitutional Law Center, presented by Stanford Legal. I’m Michael McConnell. Scholars have long studied the relationship between the Declaration of Independence and the US Constitution, but there’s another constitutional story, one that’s been hiding in plain sight.

Many of America’s state constitutions, drafted by founders including John Adams, Benjamin Franklin, and James Madison, drew directly and explicitly from the Declaration’s language and philosophy. Even today, state charters across the nation contain provisions reflecting its core principles, natural rights, equality before the law, and government by consent of the governed.

In this episode, Justice Clint Bolick of the Arizona Supreme Court explores this overlooked connection. Because state constitutional provisions often echo the Declaration more directly than federal ones, interpreting them through that founding lens can strengthen protections for individual liberty within our federal system.

Recent decisions from state supreme courts illustrate how invoking the Declaration’s principles can reinforce constitutional limits on government power, ensuring its influence extends well beyond symbolic anniversaries and into living law. With him is Stanford Law Professor Rich Ford, whose work focuses on the innovative contributions of local government to American freedom and progress.

It’s constitutional history that matters for today. Let’s examine it. so the last session of the day is on the connection between the Declaration of Independence and state constitutional law. This is, from a historical point of view, an extremely close connection because Americans, whether they had read John Locke’s Second Treatise of Government or not, Americans were natural Lockeans And when the declaration was understood as as dissolving the existing social compact that created the nation in which, Americans were part of the British Empire, and at that point, what Locke tells us, and which Americans naturally believed, was they were thrown into a kind of state of nature or maybe just back into the social compact.

There’s some disagreement about Locke. But in any event, they needed to act. There were people out in western Massachusetts who said we don’t have to pay taxes anymore un-until a constitution has been created.” But that meant for the various states. Here we were in the midst of this terrible war, which was not going very well at the beginning, the Revolution, and yet Americans were taking the time in state after state of creating the first written constitutions in the world which is a rem- an amazing thing and directly responsive to the conditions of the Declaration of Independence.

And so I’m happy to introduce the, a principal speaker who is one of our country’s not only scholarly experts on state constitutional law, but practitioner a justice of the Arizona Supreme Court and longtime l-litigator civil liberties litigator Clint Bolick. Now let me int- explain what’s going to happen here.

His interlocutor is my colleague Rich Ford who is at Stanford our teaches state and local l- law and is including state constitutional law and is a great advocate of the importance of government action at a, at these lower levels. Not everything has to be done in Washington, and we don’t…

and and an active a local government is an important part of how the common good can be promoted. But w- at the law school, we have c-competing events right now. There is a festschrift w- for the, for one of our most beloved retiring colleagues and who was a great mentor to Rich Ford.

And so Rich is not playing hooky. He’s doing double duty. And instead of acting Mrs. Doubtfire we’re going to solve the Doubtfire problem technologically. So Clint is going to give his talk. Rich has read Clint’s talk, so he know… And he’s recorded a response. Now Clint has not seen that response.

So we do have an element of spontaneity here, and then when we have questions, unfortunately Rich will not be available to help field them, which means we’ll get double duty from Clint on the answers to the questions. So please join me in welcoming Justice Clint Bullock.

Clint Bolick: What a pleasure and an honor to be here today. I wanna thank the Stanford Constitutional Law Center and to the great Professor Michael McConnell, my friend and co-conspirator for a very long time, for the opportunity to participate in this wonderful symposium. Condoleezza Rice Peter Berkowitz, Martha Minow, can you say tough acts to follow?

So I am gonna do my level best. I also wanna thank Michael and the center for rescuing me for a short time from Dante’s Inferno. We have already had over a dozen days above 100 degrees in Phoenix this year, and this weather is just heavenly, so thank you very much. I will not be able to join with you tomorrow.

I’ve gotta leave right after this bec- to perform my absolute favorite judicial function which is to perform a wedding tomorrow for one of my best friends, and so I am hightailing it back to to Phoenix. But I have very much enjoyed what I’ve heard so far and hope to live up to that standard.

It looks like our constitutional republic will survive past its quarter millennium, which is the term I have used to describe to replace those incredibly long terms that are used to describe two hundred and fifty years. And with luck, vigilance, and probably more than a little bit of divine providence, future generations will continue to celebrate our nation’s anniversary long after our departure.

Michael asked the presenters to say something new about the Declaration, and I suspect that for some, that was a tall order. But for a jurist and scholar who focuses heavily on state constitutions, it was easy. While much ink has been productively spilled on the Declaration’s influence on the national constitution and in debates over what role, if any, the Declaration should play in interpreting the national constitution the relationship between the Declaration and state constitutions has been almost completely unexamined.

The material is abundant, but the scholarship is sparse. That is unfortunate because, as I will contend, the influence of the Declaration on state constitutions and the converse is much more direct and substantive than the impact on the Declara- of the Declaration on the national constitution. And the Declaration remains salient in state constitutional interpretation even today.

Indeed, as I will suggest toward the end of my remarks its substantial potential in state constitutional jurisprudence has barely scratched the surface. For that reason, I have changed the name of my paper from the boring placeholder on the screen before you to Enduring Symbiosis: The Declaration of Independence and State Constitutions.

I will describe the relationship between the Declaration and state constitutions, one that is not at all limited to the nation’s founding era How that relationship manifests in the language of state constitutions, examples of how that language has been applied by state courts, including my own, and perhaps most important, how the Declaration’s principles embodied in state constitutions may inform future legal disputes, as I very much hope they will.

As I have a rather demanding day job, I cannot profess that this paper delves more delves more than the surface of this subject matter, but I hope that it will mark only the inception of co- of scholarly examination of this topic The original state constitutions and the Declaration of Independence, and ultimately the national constitution, germinated in the same revolutionary philosophical soil.

As they moved toward a union reflected in the Continental Congress that created the declaration, states individually did two things: They passed their own declarations of independence, and some of them adopted state constitutions. In turn, following the Declaration of Independence, more of them adopted state constitutions.

The declaration drew from existing state constitutions, and in turn, subsequent state constitutions of the founding era borrowed from and integrated principles from the declaration. My friend Jeffrey Sutton, Chief Judge for the US Court of Appeals for the Sixth Circuit, has authored the definitive book on state constitutions called Fifty-One Imperfect Solutions.

I had been planning to write a book, and I was just gonna name it Fifty-One, and people would think it was like a baseball book or something like that and actually buy it. But he beat me to the punch, and it’s just a fantastic book. And this is echoing what Professor McConnell said a few moments ago.

He writes that the era between the Declaration of Independence in seventeen seventy-six was the seminal era of constitution writing. The practice of drafting constitutions through conventions originated in the States, thereby establishing their organic popular origins. Sutton remarks that the most inspired constitution writing in this country, perhaps at any time, perhaps anywhere, occurred before seventeen eighty-seven, and it occurred in the States.

Most of the innovations in constitution writing, such as bicameral legislatures and tripartite separation of powers, were established before the national constitution was drafted. So to address the chicken and the egg question, did state constitutions come first, or did the Declaration of Independence come first?

And the answer to that question is yes. Some state constitutions were written before the declaration, and they provided a literal roadmap for the declaration’s drafters. In turn, the declaration provided a template for subsequent state constitutions. Spoiler, spoiler alert, not just for those initially created during the revolutionary period or shortly thereafter, but for pretty much all of them even if not especially in the most recent states Before the states met together in the Constitutional Congress, individual states were creating constitutional conventions to craft their organic charters of government.

And when you think about it, what more provocative and substantive way could a state manifest its serious revolutionary intent than to adopt a constitution proclaiming and creating the framework for self-government? But that the initial state constitutions were even more than that. As law professor Daniel J. Hulsebosch argues in a magnificent law review article entitled “The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution”, state constitutions were a deliberate part of the diplomatic effort to gain foreign recognition of national states, subsequently confederated as the United States.

As such, they were part of what he calls the revolutionary portfolio, along with the Declaration of Independence, the Articles of Confederation, and other foundational documents that would establish in the eyes of the world the gravity of the enterprise. John Adams believed that state constitutions should come first so that when the states convened to take collective action, they could do so as sovereign national states.

In fact, in May of seventeen seventy-six, Congress resolved that the state should create constitutions directed toward the, quote, “The preservation of internal peace, virtue, and good order, as well as for the defense of their lives, liberties, and properties.” But events moved faster than the capacity of most states to create constitutions, so that by July seventeen seventy-six, only three states, New Hampshire, South Carolina, and Virginia, had adopted constitutions, followed quickly by New Jersey.

The process continued after national independence was declared. As Hulsebosch remarks, the state constitutions looked like laboratories of experimentation for esta– for enlightenment ideas. Among many other features, early state constitutions contained declarations of rights protecting free exercise of religion and an array of other specific and retained liberties.

Although the state constitution shared a common structural framework, their distinctive provisions were the progenitor for the system of federalism that would emerge in the national constitution in seventeen eighty-seven. The first state constitutions in turn provided nearly complete outlines for the drafting of the Declaration of Independence.

Most noteworthy was Section One of the Virginia Declaration of Rights of 1776, penned by George Mason before the Declaration of Independence, which provided that all men are by nature free and independent And have certain inherent rights of which, when they enter into a state of society, they cannot by any compact deprive or div-divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring property and pursuing and obtaining happiness and safety.

A perfect articulation of natural rights philosophy. Save for a more efficient wording regarding inalienable rights, Thomas Jefferson’s famous preamble to the Declaration of Independence draws heavily upon that document. Jefferson and Adams consulted state constitutions while drafting the Declaration of Independence, and the influ-fluence of state constitutions appears ubiquitous in the final document.

In his recent book, Hidden Laws: How State Constitutions Stabilize American Politics, Robinson Woodward Burns illustrates through a nifty chart. And for those of you who are lawyers or future lawyers, I love charts and briefs. They– Lawyers don’t do nearly enough of them. I loved this chart. He demonstrated how pervasive the influence of state constitutions were on the Declaration of Independence.

Dividing the declaration into forty-one discrete provisions, everything ranging from the ringing words of the preamble to the many offenses visited upon columnists– colonists by the Crown, Woodward Burns finds that all but five were contained in one or more of the first four state constitutions that existed when the declaration was adopted.

Those first four state constitutions may have been hastily drafted, but the adoption of their core principles in the declaration made for a lasting impact. All of which underscores the widespread agreement about natural law principles that permeated all of the organic law documents of the founding era.

Once established as our foundational national proclamation, the impact of the Declaration of Independence on our organic law cannot be overstated. Certainly, that is true of the Constitution of– and Bill of Rights, but perhaps more so even from the get-go with regard to state constitutions. That is perhaps not uns– not surprising given that the time proximity between the declaration and the original state constitutions, whose drafting in both instances was commanded by Congress, contrasted with the fact that the National Constitution of 1787 was a response to the failures of the Articles of Confederation Hence, the early state constitutions adhered closely to the principles of the Declaration, most of which contained bills of rights and protected natural and inalienable rights, free exercise of religion, due process, and the right to jury trial.

Nor did that influence dissipate following the adoption of the national constitution. The Northwest Ordinance adopted by the first Congress in 1787 and renewed in 1789 contained natural rights protections that were subsequently embodied in the Ohio, Michigan, Wisconsin, and Illinois state constitutions.

That influence continued even in later adopted state constitutions. Although state constitutions vary dr- drastically in size, dates of adoption, many states have had multiple constitutions, and in their provisions, many of their common denominator provisions trace to the principles of the Declaration of Independence.

I will sketch only a few such core principles that are found in many state constitutions. Notably, whereas the national constitution did not contain an equal protection clause, most states have such clauses. One of my favorites illustrating its immediate transmission from dec- from the Declaration of Independence is Connecticut’s Article 1, Section 1, which provides, “All men when they form a social compact are equal in rights, and no man or set of men are entitled to exclusive public emoluments,” I think that’s the first time I ever said that word without tripping over it, “or privileges from the community.”

That founding era language is followed in Article 1, Section 20 by the more familiar language that would later find its way into the 14th Amendment, “No person shall be denied the equal protection of the law.” Nor is that framing pecul- peculiar to early state constitutions. The Texas Constitution, for instance, has a very similar bipartite equal protection guarantee in Article 1, Section 3 Nearly all state constitutions contain provisions establishing that all political power is inherent in the people, straight from the Declaration.

My favorite such provision is in my adopted state’s constitution, which establishes not only this proposition, but is followed by language taken directly from the Declaration, stating that the purpose of government is to protect and maintain individual rights. As Arizona is state forty-eight, not much in its constitution is original, and for that provision, we acknowledge Article 1, Section 1 of the Washington Constitution, which contains the same language.

I pause here to note an important distinction. While the Declaration of Independence clearly established the principle that all political power is inherent in the people, the National Constitution did so only implicitly in its preambular co- a proclamation of we the people. And nor did the Bill of Rights cure that defect, referring only obliquely to the residuum of non-delegated government powers remaining with the states or the people.

By contrast, in state constitutions, the principle that all political power inheres in the people constitutes a substantive constitutional provision nearly always in the state constitution’s bill or declaration of rights. Please keep this feature in mind when I turn to how state courts have applied and might apply those provisions.

A third common feature of most state constitutions is the recognition of inherent inalienable rights. The most frequent articulation is that all individuals are free and independent and possess such inherent in-in-in-inalienable rights. Indeed, Article 1, Section 1 of the Constitution of the state where we are having this conference says exactly that.

It may not always seem that way to Californians, and it doesn’t seem that way when I have to commit an act of civil disobedience by smuggling plastic straws into the state whenever I visit here. But Californians do at least theoretically possess such rights derived from the Declaration of Independence.

And very relatedly, nearly all state constitutions provide that among these inalienable rights are life, liberty, and property or the pursuit of happiness. My favorite is Article 1, Section 1 of the Indiana Constitution, one of the Nor- Northwest Ordinance states which provides, “We declare that all people are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness, that all power is inherent in the people, and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being.”

Again, not a declaration of principles, but the actual substance of the state’s organic law. This brief summary of common provisions should alone be sufficient to convey the magnitude of the Declaration’s direct impact on state constitutions. But that is not quite all. Owing to an important fact that despite my being a purported state constitutional scholar, I was unaware of until my colleague Justice Bill Montgomery told me about it a few years ago.

It turns out that the enabling acts of all of the states admitted to the Union after 1864, starting with Nevada, were required, as a condition of their admission to the Union, to adopt constitutions that are not repugnant to the principles of the Declaration of Independence. Those provisions in turn become part of the state’s organic law, and that of course includes Arizona.

When you put all of this together, state constitutions with substantive provisions derived directly from the Declaration of Independence and combine it with my natural rights philosophy and fierce devotion to textualism, you can imagine my reaction when I was recruited in 2017 to vacate my recent appointment to the state supreme court to serve instead in the congenial confines of the Ninth Circuit.

It finally took my wife grabbing my phone away and shouting, “He’s not interested. Stop calling.” But my reaction was more along the lines of, “Why would a kid voluntarily leave a candy store?” None of this is to say that state courts have aggressively applied the provisions of their state constitutions that trace to natural rights principles in the Declaration of Independence.

Much like the US Supreme Court’s evisceration of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment, many state courts have treated similar natural rights provisions of state constitutions as mere precatory language, or what Sandra– Justice Sandra Day O’Connor once described as hortatory fluff.

I haven’t found an opportunity to use that term in one of my opinions, but I am dying to do here I am speaking not of equality of law provisions or due process-related provisions or jury right guarantees, all of which derive from the Declaration or earlier documents like Magna Carta. They are enforced, of course, by both s- federal and state courts.

What I’m referring here rather to reservations of in-alienable rights that are not necessarily specifically enumerated in state constitutions. Given the centrality of such provisions within the substantive text of state constitutions, it seems to me that there are two ways they can be meaningfully applied by state courts, either as substantive constraints on abuses of government power, or at least as what I have described as prisms to interpret other constitutional provisions or statutes, much like purpose clauses that exist in, in a number of statutes What we should not do with such provisions consistent with our oath as state judges to uphold both the federal and state constitutions is to treat them as indecipher-de- indecipherable ink blots.

Before describing what state courts have done and might do with such provisions, let me detour briefly to consider why does it matter what state courts do? After all, what really matters is what federal courts do, right? If you say I’ll be very upset. Of course, not in our system of federalism, state courts are free to enforce our own constitutions to provide greater protections of individual rights and greater constraints on the power of state government than our federal counterparts.

The national constitution provides the floor for such protections. States are free to go beyond them as they have in all manner of subjects, such as educational rights, the rights of criminal defendants, and private property rights in the eminent domain context. Beyond that, all state constitutions contain protections that are differently worded than the national constitution.

For instance, most speech provisions of state constitutions, as well as protections that are absent from the national constitution, including provisions that I’ve described tracing their origins to the Declaration of Independence. At the end of the day, states may apply such provisions to define individual rights more broadly than the f- the federal courts do under the U.S. Constitution. Which is to say that while the meaning of the Declaration of Independence may in many contexts amount to an esoteric scholarly exercise, in the context of state constitutions, such scholarship may, indeed should, have important tangible implications. So how have state courts applied natural rights provisions in their constitutions?

I will high- highlight just a few examples. Numerous cases have recognized that the natural rights provisions in their state constitutions create protectable individual rights and enforceable restraints on government power. Going back to 1898, the Washington Supreme Court in a case called Dennis versus Moses considered the constitutionality of a law limiting defen- deficiency judgments on mortgages.

It’s amazing. One of the things I found is s- some of the most some of the most, unexciting cases lend themselves to the greatest constitutional pronouncements, and this one certainly did. The court remarked that in considering the sweeping consequences of this act, it would seem to be a propitious time for a recurrence to fundamental principles. Citing Article One, Section Thirty-two of the Washington Constitution to that effect, which is another natural rights provision commonly found in state constitutions, including my own.

The court concluded that the law violated the sacred rights of personal liberty and private property rights. In Young v. Commonwealth, a 1903 Virginia Supreme Court decision, the court applied the Constitution’s inalienable rights guarantees to strike down a statute prohibiting trading stamps. I didn’t know they went back that far.

Because it interfered with a person’s right to conduct lawful business and enter into contracts. Though this one I consider to be especially fun. In the midst of the Depression, the South Carolina legislature passed a law cutting the salaries of judges. Not so fast, ruled the South Carolina Supreme Court holding that an emergency did not enlarge the legislative power.

And South Carolina had a provision also traceable to the Declaration of Independence forbidding the executive and the legislature from reducing judicial salaries. The decision cited the complaint in the Declaration of Independence that the King had placed judges under his control through the tenure of their office and the amount and payment of the salaries And also cited the inherent right to life, liberty, and the pursuit of happiness, and the enjoyment of the gains of their own industry.

Indeed, not only judicial salaries, which I consider important enough but the very institution of the independent judiciary can be said to have arisen from the Declaration of Independence. In this century, the Ohio, Virginia, and Kansas Supreme Courts have applied natural rights provisions to establish substantive rights and constraints, invoking the Declaration of Independence to support their decisions.

And in a highly controversial gerrymandering decision by the North Carolina Supreme Court in 2022, both the majority and the dissenting opinions invoked natural rights guarantees in the state constitution, with the majority declaring that the two most fundamental principles of our declaration of rights are equality and popular sovereignty, and the dissent agreeing that those provisions are bedrock constitutional principles, recognizing that all are created equal and endowed with God-given rights and acknowledging that all political power originates and is derived from the people My court embraced principles in our Constitution derived from the Declaration of Independence in 2024 in an adverse possession case called Beck versus Neville, written by the aforementioned Justice Montgomery.

Recognizing fundamental private property rights under our state constitution, the opinion traced those rights not only to the Declaration of Independence, but to the Virginia Constitution that preceded it. The opinion noted the striking resemblance of provisions in both the Virginia and Arizona Declaration of Rights pertaining to the necessity of a recur- frequent recurrence to fundamental principles and to all political power adhering in the people.

Given that Arizona’s Enabling Act required our Constitution to conform to the prin- principles of the Declaration, the opinion concluded that consistent with the Declaration of Independence and the federal and Arizona Constitutions, the ownership of property is a natural right of significant interest which we have a duty to protect.

Six of our seven justices concurred fully in this significant decision, and we’re still working on the seventh. In my years studying state constitutions and enforcing ours, I have found it remarkable that state constitutions tend to resemble one another more than they resemble the U.S. Constitution. The unbroken line between early state constitutions, the Declaration of Independence, and more recent state constitutions is direct, tangible, and largely unbroken and continues to manifest in significant court decisions. So what future directions might these provisions take?

Of course, judges are limited in what principles they can apply by the cases that are brought before them. And sadly, lawyers often fail to raise strong arguments on independent state constitutional grounds. But sometimes they do, and state judges, in my opinion, are oath-bound to enforce the provisions of our state constitutions.

I have sketched out some thoughts on the implications of natural rights provisions in state constitutions in a pair of concurring opinions. And one of the really cool things about being a judge is you get to quote yourself all the time. In fact, I remember when my first opinion came out, and I exclaimed, probably too loudly, “I have jurisprudence!”

Did you do that, Michael? In the first of these concurring opinions, I applied these provisions to take on one of the great sacred cows of American law. And here I pause to ask Professor McConnell, I know of only one religion that holds cows as sacred. Therefore, isn’t it an Establishment Clause violation to enshrine a sacred cow in law?

In our 2020 decision in State versus Arevalo, the Arizona Supreme Court considered the constitutionality of an enhanced criminal s- penalty statute. All of the judges agreed that the statute was unconstitutional. But now retired Justice John Pelander and I added a concurring opinion addressing a familiar argument that the state raised, the presumption of constitutionality that confronts anyone challenging a law.

The presumption is deeply rooted in American law and was reflexively imported by Arizona courts early in our state’s history. In fact, it was quite a strong presumption in our court’s early jurisprudence, requiring anyone challenging a law’s validity to demonstrate that it was unconstitutional beyond a reasonable doubt, which of course is the same standard that applies to convict a criminal defendant.

Justice Pelander and I argued that whatever validity the presumption of constitutional constitutionality possesses under the national constitution, we should discard it under our state constitution. The presumption is rationalized as a matter of respect and deference paid by the judiciary to the legislative branch.

In our view, that is better reflected by our rule to interpret statutes when possible to avoid unconstitutional results, but not by additionally unbalancing the scales of justice and forcing Arizonans, as we put it, to face a judicially manufactured uphill battle anytime they challenge an infringement of their rights.

Ultimately, we urge that the court abandon the presumption, declaring that on this point, our constitution provides the necessary counsel. A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government. The view that a presumption of constitutionality is incompatible with a state’s constitution that extols fundamental natural individual rights was shared by a concurring opinion by three justices on the Texas Supreme Court, authored by my friend Don Willett, who now serves on the Fifth Circuit In a 2015 decision striking down licensing of eyebrow threaders, and I still have no idea what eyebrow threading is, but the state licensed them in Texas.

Justice Willett and his colleagues noted the natural rights provisions of their state constitution, and I love this language, remarking that a pro-liberty presumption is hardwired into the Texas Constitution, meaning that Texans are presumptively free and government must ju-justify its deprivations.

Here is a second example. Just last year, my colleagues and I considered a constitutional challenge to a state COVID statute that raised the standard for malpractice for physicians who treated patients with COVID combined with other illnesses. My colleagues concluded, incorrectly in my view, that the law was unconstitutional under an unusual provision of our progressive era constitution referred to as the Anti-Abrogation Clause.

But the state raised a second argument. Even if the statute was unconstitutional in normal times, the government’s power to constrain constitutional rights expands in an emergency. All of us agreed that is not but Justice Montgomery and I wrote a concurring opinion on that point, noting just how profoundly inconsistent such an argument is with a constitution that governments that proclaims that governments derive their just powers from the consent of the governed and are established to protect and maintain individual rights and with our enabling act.

We also relied on a nifty provision of our Declaration of Rights that does not trace to the Declaration of Independence, but was forged from the painful experience of courts and elected f- officials failing to enforce constitutional rights. And if there was anything I could export from the Arizona Constitution to the US Constitution, it would be this provision.

Article two, Section thirty-two provides that, quote, “The provisions of this Constitution are mandatory unless by express words they are declared to be otherwise.” We concluded that as judges who take an oath to the Arizona Constitution, we are not free to disregard or adulterate its guarantees. That emphatically includes the individual rights guaranteed by our Constitution that could be eviscerated by an invocation of emergency powers.

Our court’s opinion was a direct repudiation of the US Supreme Court’s 1905 decision in Jacobson versus Massachusetts, which upheld the sweeping exercise of emergency police powers in an earlier pandemic that would have otherwise violated constitutional rights. That precedent was used to justify violations of individual rights during COVID.

Obviously, we could not invalidate federal laws, but we could strike down abuses of the state police power. And whenever we do we adhere more closely to the natural rights guarantees of the Declaration of Independence, assuring the greater freedom to which Arizonans are entitled to under our state constitution.

The state cases I have described illustrate how natural rights provisions in state constitutions that derive from the Declaration of Independence can today and in the future provide greater protection for individual rights than does the national constitution as construed by the US Supreme Court.

Given that states are the organic institutions of government in our federal republic, it should be no surprise that they are both capable of and sometimes prone to protecting the rights of their citizens The Declaration of Independence was intended to be a living document, not in the sense that its meaning changes, but that it embodies eternal truths and an enduring understanding of individual rights.

We should celebrate it not only for its historical accomplishments, but also for what it means for Americans today. It remains, in the magnificent words of Martin Luther King Jr., “A promissory note to which all Americans are heir.” Whatever its vitality in other contexts, I am happy to report that in the States, at the ripe young age of 250 years and counting, the Declaration is alive and well.

Thank you so much for sharing your time with me today. Thank you 

Richard Thompson Ford: I’d like to thank the Stanford Constitutional Law Center for inviting me to comment today on Judge Bolick’s fascinating paper on the criminally underappreciated topic of state constitutions. I very much regret I can’t be there with you in person.

I’d t- to focus on two themes that Judge Bolick’s paper raises. One is the importance of state governments and state constitutions in our state, in our constitutional tradition, and the second is the role of the natural rights tradition in the Declaration of Independence and in state constitutions I’d like to expand first on Judge Bolick’s observations regarding the importance of state constitutions and join in his call for us to consider state constitutions in interpreting our shared constitutional lineage.

Then I’ll raise some questions about the implications of the natural rights tradition for both the Declaration of Independence and for interpreting constitutional law more generally First on state government and state constitutions. Today, it’s almost reflexive to think of constitutional law and higher law generally as inherently in the domain of centralized political authority.

But the idea that the federal government is the guarantor of rights followed not from the Declaration of Independence, but from something that’s came much later, the Civil War and its aftermath. Obviously, centralized authority was necessary to guarantee the liberty of former slaves because it had been necessary to prevent the secession of slave states from the union.

It was also necessary to ensure that the Confederacy did not rise again and return to power in the South. And this legacy has informed our understanding of the relationship between rights and decentralized government ever since Centralized authority was again necessary to complete the second reconstruction through things like the omnibus civil rights legislation of the 1960s And because of this history, rights have become almost synonymous with federal power operating to control abuses by recalcitrant states But it’s increasingly less clear that the federal government will be a reliable defender of those rights.

And it’s even less obvious that state governments are the most consistent menace to them. Indeed, increasingly, state governments have filled the vacuum left by an ineffectual or retrenching federal government. Or maybe it’s more accurate to say that state governments have carried on in their long and es- long established but underappreciated role in guaranteeing the rights of their citizens.

The now conventional story of state recalcitrance and federal vindication of civil rights is only partially accurate. It ignores the role of state governments in pioneering the civil rights that the federal government and the Supreme Court later adopted. Anti-discrimination laws in states like California and New York predated and formed the template for the Civil Rights Act of 1964.

And many state governments guaranteed equal access to public education long before the Supreme Court struck down school segregation in 1954 in Brown v. Board of Education. Today, many state constitutions guarantee educational equity and prevent exclusionary land use policies, two areas in which the Supreme Court has decided that the federal Constitution is silent.

So I heartily join Judge Bolick in a celebration of state governments and state constitutions as vital participants in what we might call a national conversation about the meaning of our most fundamental rights

Now I’d like to say a little bit about the implications of the natural rights tradition Today, the natural rights tradition is most typically advanced to emphasize limits on governmental power, negative rights, and not positive entitlements that might require collective action. This libertarian strain has been an argument for deregulation, for resistance to the social programs of the New Deal and the Great Society, and to a lesser but still significant extent, to the Civil Rights Act.

But I think this is an incomplete reading of the natural rights tradition. Natural rights include both limitations on government and positive rights to pursue collective goals through government. The natural rights tradition at the time of the Declaration of Independence was a diverse and capacious one.

It, along with religious thinking, was the default moral language of the era. And as a consequence, almost every conceivable idea could be framed in terms of natural rights, and this included some that were in direct conflict with each other. So for instance, slavery was both opposed and defended in terms of natural rights, and revolutions were inspired by and condemned using the language of natural rights. I’m not certain how the authors of the Declaration of Independence would’ve thought of things like restrictive pandemic policies.

The declaration certainly complained of governmental overreach, but it was first and foremost the repudiation of the rule of a king, not a demand for a limitation on the power of government generally. Indeed, many of the complaints of the declaration were that the king and Parliament had neutered colonial government, making it ineffectual.

So for example, among the complaints was that the king had forbidden his governors to pass laws of immediate and pressing importance, dissolved representative houses, and obstructed the administration of justice. Here, the complaint was that Britain had displaced independent colonial government. The rights claimed by the declaration were collective rights to self-determination, not individual rights against government generally.

The objective of the declaration was to repudiate imperial rule and empower popular assembly. And popular assemblies of the colonial era could be quite muscular. For example, colonial New England towns regularly expelled residents found to have violated community norms, and this practice continued in some form well into the 19th century.

The practice of warning out unwanted people would clearly violate today’s right to travel, and it also would violate today’s notion of property rights because the residents were forbidden to sell property to anyone who had been warned out of the community. But warning out was considered to be consistent with, even a natural outgrowth of, natural right because the local community enjoyed associational rights that excluded the right to exclude.

Hence, the natural right to property might plausibly guarantee against the quartering of imperial troops, but also guarantee the right of a town council to banish anyone who threatened the community, whether because of indigence, immoral behavior, or disease While the Declaration considered the Crown and its officers a threat to liberty, local government was both a source of authoritative law and a type of private association protected by rights.

Local governments and some of the colonies themselves were, in today’s terms, a hybrid of governmental and private enterprise. Colonial governments such as Pennsylvania, where the Declaration was signed, began as chartered corporations, associations funded by private investment and licensed by the Crown to exercise public power.

So when a city or colonial government acted, whether through an assembly or through its executive, the action was a vindication of private property rights as well as of the coercive power of the state. A corporation was both a vehicle of sovereign power and a private association. The lawyers in the era of the declaration did not distinguish between public and private action in the way that we do today.

So for example, the declaration faulted Britain for, quote, “Taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of government.” That’s all in one sentence. Instead of looking to limitations on government as a general matter, they asked whether the government was distant and exploitative or local and responsive In short, the natural rights tradition was understood as a limitation on distant, repressive, and illegitimate government, but also a guarantee of the right to take collective action through democratic government.

Then as now, individual rights are meaningless unless they include the ability to act collectively with others. And then as now, the legal vehicle for such collective action is the corporate form or government. What’s different is that corporations then included entities that we now think of as governments.

And this suggests a difficult, perhaps unanswerable question for anyone seeking to vindicate the natural rights that inform the Declaration of Independence. Can the formal public-private distinction, which took its current form a generation after the Declaration, define the scope of individual rights that the Declaration sought to vindicate?

Or might some forms of legislation at the state and especially at the local level be analogous to what the authors of the Declaration wanted to defend? Conversely, and this may be a little easier to see, might some actions of private corporations look more like the coercive power of government that the Declaration saw as a menace to liberty?

The authority of social media companies to control speech is one good example, but it’s far from the only one. Common interest developments or homeowners associations that function as municipal governments, large global retailers that effectively set both wholesale and retail prices for entire categories of goods, medical providers that can set prices and control access to vital health care.

These are other possible candidates. In a sense, this problem is as old as the public-private distinction itself. And it suggests that applying a natural rights framework to constitutional law, whether at the state or federal level, may raise more questions than it answers. None of these cavils undermines what I take to be Judge Bolick’s central point, that state constitutions offer valuable perspectives on the commitments underlying our nation’s founding and therefore on our nation’s higher law.

And this suggests the need for a broader constitutional conversation in which an important voice would be the rich and often neglected jurisprudence of state constitutional law.

Thank you.

Clint Bolick: Michael, pre- please relay the applause when you see your colleague. I’ll just respond to a couple of the comments and then be happy to take questions or engage with, in conversation with the audience. I think, S- some of Professor Ford’s comments are somewhat distant from the Declaration of Independence principles that are incorporated into state constitutions.

But I think his threshold point about the Declaration and the Declaration’s principles embodied in state constitutions really fell into two categories. One is the protection of individual rights, which were generally coextensive with the common law rights of of the English, and then also self-government rights.

That is the ability of the states and the national government ultimately to govern themselves. No question that there are those two components. But the state constitutions from the very, very beginning established explicit individual rights such as freedom of speech and freedom of religion which were obviously a rejection of regulation by the Crown.

And at the very same time protected inalienable rights, which I think go to to the common law rights that were brought over from Britain. So there, there certainly would be clashes within state constitutions with regard to to those two competing those two competing goals.

And the– And certainly, he also makes a very important point. States were expected to be the primary guarantors of individual rights at the founding of our nation and proved not always to be such reliable guarantors, certainly in terms of the institution of human slavery, but beyond that suppression of speech, suppression of in some instances, suppression of religion a- and that sort of thing.

And as a result, the double security of the Fourteenth Amendment was necessary to accomplish the original natural rights goals of of the Declaration of Independence. Even today, of course- Those contests continue and as he was speaking, I was thinking of a recent case in the Arizona Supreme Court in which I was actually in the majority.

It predated the US Supreme Court case in this area. And one, one of the things I love about state constitutions is that in many instances, issues that are tenaciously fought all the way to the US Supreme Court have no bearing on states that already protect the rights that people are seeking to establish when they go up to the US Supreme Court.

I mentioned eminent domain in passing, and our Constitution almost anti- in 1912 anticipated the Kelo decision by saying not only that you couldn’t have a taking of private property for private use, but that it was a judicial question to be decided without regard to any legislative assertion that the use is actually actually public.

I sometimes think that the framers of our Constitution transported themselves to today and then went back and created provisions to avoid some of the mistakes that the US Supreme Court has made. But the case that I have in mind is a case called Brush versus… Brush & Nib which involved a Phoenix, ordinance that criminalized the refusal to provide customized wedding invitations to to gay couples.

And so n- now we know that such a law would be unconstitutional under the US Constitution by virtue of the US Supreme Court decision in that context a couple of years ago, but this was before that. So we relied on the f- Free Speech Clause of our Constitution and freedom of religion under our state laws.

And we basically weighed the heavy police power considerations in favor of anti-discrimination laws against the imposition on the religious views and beliefs and free speech rights, and concluded four to three, with yours truly in the majority for once that the law was was unconstitutional under the state constitution.

But again, returning to his theme that there are residual police powers, there are residual self-government powers, but our constitutions, our state constitutions also have… are chock-full of express individual rights, express constraints on government power. But in my view, the the general assertions of individual rights should have great currency with regard to how our courts interpret them as well.

Pam Karlan: This has been a special presentation from Stanford Legal. I’m Pam Karlan. See you next time