Fundamental Rights in Early American Case Law: 1789-1859
| Author | Nicholas P. Zinos |
| Position | Independent Researcher |
| Pages | 137-167 |
Fundamental Rights in eaRly ameRican case law:
1789-1859
Nicholas P. Zinos*
Independent Researcher
ABSTRACT
Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence.
Where did the term “Fundamental Rights” come from, and how was it applied in early
American case law? This article outlines the genesis of fundamental rights law in early
17th century England and how this law developed and was applied over time. The English
Bill of Rights of 1689 was the rst attempt to codify these rights in English law. When
the English legal system emigrated to America along with the early American colonists,
it included the English conception of fundamental rights. The framers of the United
States Constitution incorporated and expanded these rights. Early American Case law
kept strictly within this tradition for the most past, and used the term “fundamental
rights” usually for rights which had long been recognized in Anglo-American society.
This article notes the concordance between the application of fundamental rights in
early American case law and the long tradition of fundamental rights which ripened in
the Anglo-American legal tradition.
KEYWORDS
Originalism; Natural Law & Fundamental Rights; Anglo-American Heritage; Bill of
Rights; Coreld v. Coryell.
CONTENTS
Br. J. Am. Leg. Studies 7(1) (2018), DOI: 10.2478/bjals-2018-0004
© 2018 Nicholas P. Zinos, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Attorney working in private practice in St. Paul, Minnesota. This article was made possible in
part by the Bakken Fellowship from the Hamline University School of Law.
intRoduction .................................................................................................. 138
i. the oRigin oF the teRm “Fundamental Rights” in english law .............. 139
ii. Fundamental Rights cRoss the atlantic with the colonists ................ 140
iii. Fundamental Rights: 1800-1820 ............................................................144
iV Fundamental Rights: 1820-1829 ............................................................. 146
V. can the goVeRnment haVe Fundamental Rights? ................................... 150
Vi. Fundamental Rights and natuRal law .................................................. 152
Vii. the statistical FRequency oF speciFic Rights ...................................... 159
Viii. conclusion ............................................................................................ 166
7 Br. J. Am. Leg. Studies (2018)
intRoduction
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.1
The purpose of this article is partially to ll 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
1 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 xed 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 xed 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).
138
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