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Human rights in America, 1776-1849: rediscovering the states' contribution.

WHY RIGHTS OF MAN?

Individual possession of rights beyond the reach of any governmental power was not an invention of the American Revolution. The perception of being situated in a centuries-old common law tradition, reaching back at least to Magna Carta, (1) had helped to create a legal culture which rested on the conviction that the liberties of the individual had a solid legal foundation. The English revolutions during the seventeenth century had largely contributed to the impression that the Englishman was secure in his rights as they were confirmed in such highly appreciated laws as the Habeas Corpus Act of 1679, (2) the Bill of Rights of 1689, (3) and the Act of Settlement of 1701. (4)

The American perception of the English legal tradition, together with its interpretation by British courts, lawyers, the European discourse on natural law, (5) and above all John Locke, (6) put a stamp on the American Revolution. Debates over Britain's policies towards its American subjects soon resulted in a general discussion on the responsibilities of government and its obligations towards the individual. (7) Gerald Stourzh has aptly called this process the evolution from the fundamentalizing of human rights to their constitutionalization. (8)

As early as 1776, Americans had set out to apply this framework of legal and political ideas to the constitutionalization of human rights. As an increasing number of colonists throughout all ranks understood it, historical and political experience delivered one of their main arguments and contributed to a situation in which the controversial British policies were increasingly contested, not on political grounds but on a principled basis of law. (9) James Wilson, a founding father, the first law professor at the College of Philadelphia, and an associate justice of the Supreme Court of the United States (10) developed the argument further: Did man, when he left the state of nature, surrender his natural rights only to acquire security as a feeble compensation guaranteed by a superior power? "Government," he answered, "should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind." (11) More than ten years earlier, the famous Essex Result of 1778 expressed similar ideas: when man enters society he does not surrender his inalienable rights, but only his alienable rights for the common good. (12) "The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped." (13)

But which rights does man possess? Against which power must they be protected? What are the principal results of the first seventy-five years of the constitutionalization of the rights of man in America? And finally, in what way did the American declarations of rights differ from the French Declaration of the Rights of Man and Citizen of 1789? In order to answer these questions, all American declarations of rights of the period will be analyzed and considered both as a unitary corpus of documents and in their historical evolution. (14)

WHICH RIGHTS OF MAN?

Between 1776 and 1849, seventy-eight constitutions were officially drafted in the United States, of which twenty-one were never put into practice. (15) Of the fifty-seven constitutions adopted, 10% failed to contain any reference to a single human right. (16) Furthermore, 20% of the remaining fifty-one constitutions addressed only a fairly limited number of rights. (17) The last of these constitutions before mid-century to do so were the 1845 constitution of Louisiana and the 1846 constitution of New York. The omission of a declaration of rights could constitute a reason for rejecting a proposed constitution, as was the case in Massachusetts in 1778. (18) More importantly, the necessity of a declaration of rights became manifest in the debates over the ratification of the Federal Constitution in 1787 and 1788. (19) Only the promise to add a declaration of rights secured ratification of the document. (20) In turn, the first ten amendments to the Federal Constitution--popularly known as the Bill of Rights--were adopted in 1791 to make good on this promise.

The American discourse on human rights produced its first constitutional document with the Declaration of Rights of Virginia on June 12, 1776. (21) The example was so convincing that most of the other states decided also to adopt a similar declaration. Only New Jersey did not do so until 1844, and Georgia, New York, South Carolina, and Louisiana, relied on a restricted number of rights in their successive constitutions up to the Civil War. (22) The number of these rights included in their respective constitutions varied between six (in New York as of 1777 and Georgia as of 1789) and twenty-two (in New York as of 1846), with an average of around ten rights for the rest of the states.

After the Virginia Declaration of Rights only the Articles of Confederation of 1777, the original text of the Federal Constitution of 1787 (according to common understanding), and two of the four Texas constitutions (before the incorporation of the state into the United States, those of 1827 and 1835) did not declare any human rights. (23) By 1849, when California adopted its first state constitution, (24) a total of forty-one American constitutions contained a declaration of rights. (25) Generally, each of these constitutions declared approximately thirty different rights, (26) while three of them--the constitutions of Maryland of 1776 and of New Hampshire of 1784 and 1792--boasted more than forty. (27)

The various rights expressed in the American state constitutions may be divided into three groups. First, those stipulations that declared "first principles;" (28) second, rights actively conferred to the people or, more precisely, to the individual, such as political rights, social rights, economic rights, and others; and third, protection passively granted to the individual mostly through restrictions introduced in the political, social, economic, and juridical domain. As to the fifty-one American constitutions of the period, which declared human rights to any extent, 3% of the stipulations belong to the "first principles" group, 48% are considered rights actively conferred to the individual, while 49% of the total granted protection to the individual. (29)

As a rule, the American declaration of rights, predisposed by the time-honored common law tradition, (30) abstained from extensive exposures of lofty principles lacking meaningful legal consequences. Rather, the American declaration of rights were characterized by a dual limitation on the powers of the government. The individual was granted specific rights protected through recourse to legal action, and the government's power was limited to secure the individual's enjoyment of the blessings of liberty. (31) It was this double limitation of government that characterized the American declarations of rights.

WHICH POWER TO GUARD AGAINST?

The overall emphasis of the American declarations of rights indicates which government power, within the system of separation of powers, these declarations were primarily directed against. The American debate on human rights had made obvious that to secure these rights was a precondition for, if not synonymous with legitimate power. But which of the three government powers was apt to be the guarantor of these rights, and against which of these powers with their inherent aspirations and pretensions was special protection needed?

The initial idea, readily assumed today, of a grand design to limit the power of the legislature through special protection granted to the individual requires a more thorough evaluation. Any analysis of the Virginia Declaration of Rights will lead to distinctly different results. Virginia's Declaration of Rights, of which 42% of the stipulations granted the individual protection, contained prohibitions of "exclusive or separate emoluments or privileges," separation of powers, rotation in office, security of property, government by consent, rules against the suspending of laws "without consent of the representatives of the people," a "well-regulated militia," "that standing armies, in time of peace, should be avoided," strict subordination of the military to the civil power, and a right to uniform government. (32) None of these stipulations can be interpreted as restricting the legislature's power or as completely prohibiting the legislature from acting. In fact, the opposite is true: "[M]agistrates are [the people's] trustees and servants, and at all times amenable to them." (33) The members of the executive branch were made accountable to the people, not the lawmakers or judges. (34) Virginians understood, from a long-standing tradition in political philosophy, that the greatest danger of despotic government emanated from the executive. (35)

The Maryland Declaration of Rights of August 14th, 1776, second in importance only to Virginia among the early declarations, did not change the general tendency. (36) To be sure, the percentage of the stipulations granting protection rose to almost sixty. (37) Furthermore, only one clause remained appealing to "first principles," the sovereignty of the people. But of all the new stipulations of rights conferred and protections granted in Maryland--eighteen in addition to the twenty-six original stipulations in Virginia and to the four newly inserted in New Jersey (38)--only two can be regarded as restrictions on the power of the legislature. These restrictions included the prohibition of ex post facto laws and bills of attainder. (39)

In the summer of 1776, there seems to have been a widespread consensus that a potential threat of despotic power loomed from the executive. Many believed that the proper remedy to combat this power could only come from the people. (40) By way of their representatives, the people were considered to be the true guarantors of their own rights. (41) Here, we read for the first time in an American state constitution "[t]hat freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature." (42) This clause was taken from the English Bill of Rights of 1689 nearly verbatim. The place for the meeting of the legislature was to be fixed according to the convenience of its members. Borrowing again from the English Bill of Rights, the Maryland Declaration of Rights provided that, "for redress of grievances, and for amending, strengthening and preserving the laws, the Legislature ought to be frequently convened." (43) A standing army and a long tenure in the executive office were presumed to create dangers to liberty. (44) However, the authority to fix aids, charges, taxes, and fees--which the legislature alone was empowered to do--was not seen as an equal enemy of liberty. (45) It was also the legislature which, though strict restrictions were imposed, had the right to alter, change, or abolish the Declaration and the Constitution. (46) The evolution reached its climax with the Constitution of Pennsylvania's Declaration of Rights on September 28th, 1776, and again with its repetition in the Vermont Constitutions of 1777, 1786, and 1793, which included minor changes with each revision. (47) The radicalism of the Pennsylvanian Constitution is emphasized by the repeated phrase "That the people have a right ...," which opens one-fourth of the articles of the Declaration. (48) To ensure their rights and the common good, the people gained the right to assemble and to instruct their representatives, which were both missing from the previous declarations of rights. (49) Finally, the Pennsylvania Constitution suggested that the people carefully survey their legislators and magistrates to determine whether they made and executed "such laws as are necessary for the good government of the state." (50) The Pennsylvania Declaration of Rights of 1776 left little doubt as to who guaranteed the rights of man and, conversely, who might endanger them. The search for a republican remedy to the problem of tyrannical powers resulted in an unrestricted reliance on the people as final guardians of their own rights. In conformity with this persuasion, almost 60% of the stipulations in the Pennsylvania Declaration actively conferred rights to the individual--5% more than in the Virginia or Delaware Constitutions of 1776, and a percentage equivalent to that of North Carolina in 1776 and Vermont in 1777. (51)

A major change arrived with the Declaration of Rights in the Constitution of Massachusetts of 1780, the declaration subsequent to Vermont, and the last declaration with a legitimate claim to originality prior to the Federal Constitution. (52) With the Massachusetts declaration, and its adoption in New Hampshire, the share of stipulations actively conferring rights declined to approximately 45%. (53) Massachusetts failed to create or announce a single new right, whereas in the past every Declaration of Rights added at least one unique clause to the human rights catalogue. Although not legally original, the importance of the Massachusetts Declaration of Rights stems from its radical departure from its predecessors in style and mood. Nothing was left of the eulogies of the people as guarantor of their rights, as had been common during the summer of 1776. However, the people remained the source of sovereignty with the constant right to alter or change their government. (54) The new words had a notably different tone: what Virginia phrased in 1776 as "[t]hat all power is vested in, and consequently derived from, the people;" (55) read four years later in Massachusetts as "[a]ll power residing originally in the people, and being derived from them...." (56) By 1780, the people of Massachusetts had already handed over the power that still had belonged to the people of Virginia in 1776. In Massachusetts "the several magistrates and officers of government" now held this power as the "substitutes and agents" of the people, (57) not as "their trustees and servants," as had been the case in Virginia. (58) A few years later, Judge Alexander Hanson, speaking on behalf of many opposed to the concept of the supremacy of the people over the legislature, insisted on a similar change of semantics. Hanson noted, "'the doctrine that the power, actually, at all times, resides in the people, is subversive of all government and law.'" (59)

This turn from early expressions of radicalism to a more conservative approach prevented the people from being directly involved in government. This conservative approach is evident in the Federal Constitution, with its manifest intention of limiting legislative power in order to secure the rights of the individual. Indicative of the growing favor shown to the conservative attitude was the fact that James Madison, father of the Constitution and the Bill of Rights, expressed this change in political philosophy. (60) In England, "they have gone no farther, than to raise a barrier against the power of the crown ... and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States." (61) Only a few rights were enumerated in the original document of 1787. However, the rights were inserted in the legislative article with the specific and significant intention of limiting the power of the federal and state legislatures. (62) Furthermore, the first ten amendments, added in 1791 and known collectively as the Bill of Rights, begin with the famous words "Congress shall make no law...." (63) Though the subsequent state constitutions only very rarely expressed a comparable rigor, the direction was well established. In time, the framers recognized that limitations on executive power were not essential to protect the rights of the individual. Moreover, the people were no longer considered the guarantors of their own rights. Instead, instruments were needed to protect against pretended usurpations of the legislative power, which, in the end, meant against the people themselves. (64)

SEVENTY-FIVE YEARS OF CONSTITUTIONALIZATION OF HUMAN RIGHTS IN THE UNITED STATES

Language

A comparison of a specific clause in the Virginia Declaration with the corresponding clause in the Massachusetts Constitution reveals the importance of language. (65) Indeed, language discloses intentions and ideas. The evaluation of constitutional language must begin with a matter that causes few problems in most countries other than the United States: a title. On a national scale, the first ten amendments to the Federal Constitution are called the Bill of Rights. This suggests that this is the American synonym for a Declaration of the Rights of Man.

The American phrase expresses two ideas: tradition and opposition. Tradition takes us back into English history and the "Glorious Revolution," which promulgated the English Bill of Rights. (66) In contrast to the American document, the English Bill of Rights dealt primarily with the rights of Parliament in opposing the crown and only to a minor degree with the rights of Englishmen. (67) The English Bill of Rights did not operate to create any new rights, but rather served to formally enunciate those rights that were believed to always have existed and had only recently been challenged by royal policy. (68) The English Bill of Rights, therefore, was said to contain nothing more than what had always constituted English liberties and the ancient constitution, an idea many colonists took up when in opposing British politics they set out to defend what they considered to be their inherited rights. In contrast to this opinion, a declaration of rights characterized a document, the political intention of which was at least as important as its legal aspects and which tended to express at the same time modern natural-law rationalism. (69)

The American discourse of the time also reveals how meaningful the term Bill of Rights was for the first amendments to the Federal Constitution. From the Virginia Declaration of 1776 through the Massachusetts Constitution of 1780 and later, the use of the term "Bill of Rights" was often heard. However, in spite of this usage, the states consistently chose the phrase Declaration of Rights to characterize corresponding segments of state constitutions. (70) In 1784, New Hampshire became the first state to change to the title Bill of Rights. (71) However, New Hampshire's change was an aberration; until the end of the period under consideration here, none of the states, with the sole exception of Iowa in 1846, took up the title Bill of Rights instead of the established term of Declaration of Rights. (72) The states continued to declare the rights of the individual--traditional as well as newly invented ones--instead of merely recording existing rights.

More than twenty years ago, Donald Lutz emphasized the meaning of language in another area. (73) The legal dimensions of the American declarations have already been mentioned, but were their stipulations really made to be contested in court? Another look at the Virginia Declaration may help to answer this question. Note the following phrasing: "[t]hat government is, or ought to be, instituted for the common benefit;" (74) "[t]hat the legislative and executive powers of the State should be separate;" (75) "[t]hat elections ... ought to be free," (76) "[t]hat all power of suspending laws ... without consent of the representatives of the people ... ought not to be exercised." (77) This is the language of moral appeal rather than of legal instruction used for taking action against the government in court. The language was reminiscent of traditional language used in a remonstrance brought before the king. Therefore, a judicial revolution was needed to transform this language into legal notions with compelling force in the courts. The political language that was achieved in the summer of 1776 slowly transformed into legal language. All declarations of 1776 and in subsequent years made use of this traditional language. The radicals in Pennsylvania employed it just as the more conservative constitution makers in Massachusetts, including those who adapted their constitutions in Vermont and in New Hampshire, respectively. (78) The new legal language was consistently used in the Declaration of Rights of the new Constitution of Pennsylvania of 1790. (79) Instead of "should" and "ought to," it now read "shall" and "shall be," the language of legal imposition and compelling force. (80) With only rare exceptions in the 1790s, the new legal character of the American declarations of rights was established.

Ninety-four Individual Stipulations and the Contributions of the States

The fifty-one American constitutions of the period from 1776 through 1849 in which human rights were declared contained a total of ninety-four individual stipulations (see appendix I). This figure leaves out a few rare stipulations of only local importance, which according to common modern understanding do not belong in a proper declaration of rights, as well as those which were inserted in the frame of government and were not mentioned in the declaration of rights. Of these ninety-four stipulations, fifty-three originated in 1776, while only nineteen were added during the first half of the nineteenth century. (81)

Some stipulations were only of transitory importance, with clauses dedicated to duels, (82) primogeniture, (83) and feudal property. (84) Others, such as separation of powers (85) or rotation in office, (86) may not be considered human rights in the proper sense. Declaring the "Christian Protestant religion" the established religion in South Carolina in 1778 (87) rather appears to be a restriction in rights. This was not repeated in the declaration of rights of any other American state, and South Carolina itself did not include it in its new constitution of 1790. (88) It may be doubted that a declaration of rights is the proper place to postulate free navigation on the Mississippi, as Tennessee did in 1796: (89) the rationale behind this claim probably became obsolete with the Louisiana Purchase, seven years later. (90)

In spite of these stipulations and a few others of purely ephemeral character, the vast majority proved to be of lasting significance for modern constitutionalism. Almost the whole catalog of classic human rights is to be found here, including: the right of resistance, the right to vote, the liberty of the press, religious liberty, the right to assemble and to petition, just compensation, the right to remedy, the principle nulla poena sine lege, the presumption of innocence, and others.

It must be admitted, however, that some of the rights considered indispensable in the United States today appear to have been latecomers in American constitutionalism. For example, Georgia in 1777 was the first to constitutionalize the venerable English principle of habeas corpus. (91) Additionally, just compensation was introduced by Vermont in 1777, (92) the double jeopardy clause made its first constitutional appearance in New Hampshire in 1784, (93) the principle of nulla poena sine lege did not appear in an American declaration of rights before 1817 (in Mississippi), (94) and the presumption of innocence, already declared in France in 1789, had to wait for the Rhode Island Declaration of Rights in 1842. (95)

However, the right to bear arms and the right to emigrate, both introduced by the Pennsylvania declaration of 1776 (96) and routinely associated with the United States today, were far from being universally accepted in the other states. Only a bare majority, seventeen of thirty-one states, included the right to bear arms in their human rights catalog. (97) Furthermore, less than a third of all declarations incorporated the right to emigrate. (98)

The contributions individual states made to the evolution of the rights of man varied considerably. While almost half of the ninety-four stipulations originated from the 1776 declarations of Virginia and Maryland, (99) some of these rights evolved over time and received significant modifications or enlargements in subsequent declarations. For example, only a few weeks after Virginia had declared religious liberty in 1776, (100) New Jersey added that no one shall "be obliged to pay tithes, taxes, or any other rates" to any church or sect he does not belong to. (101) Additionally, New Jersey ruled out any religious tests--though only for Protestants (102)--a severe restriction that was bound to disappear. (103)

The liberty of the press had also been declared in Virginia in 1776. (104) However, recent British history demonstrated the weakness of this right as long as the jury only enjoyed the right to deliver a verdict on the fact of the publication while not being allowed to consider its content. (105) Therefore, the famous Fox's Libel Act of 1792 is widely recognized as the beginning of the freedom of the press in Great Britain. It provided that the jury give a verdict on the whole issue, that is, the facts and the law. (106) This right was incorporated two years earlier in the Constitution of Pennsylvania of 1790 (107) and subsequently adopted by almost all state constitutions. Obviously, Thomas Erskine's resounding argument in support of the right of juries and the liberty of the press, in the famous Stockdale trial in 1789, was well received on both sides of the Atlantic Ocean. (108)

In the latter half of the eighteenth century, several state constitutions made major contributions to the evolution of individual rights in the United States by granting or transferring existing constitutional stipulations to the Declaration of Rights catalog that are considered indispensable today. For example, in 1776, Pennsylvania granted its citizens the rights to bear arms, to emigrate, and to assemble. (109) The following year, Georgia granted habeas corpus protection, (110) while Vermont prohibited slavery, provided for just compensation, and granted the right to be tried in the state where the offense was committed. (111) Furthermore, in 1784, New Hampshire provided protection against double jeopardy, (112) while in 1790 Pennsylvania added the law of libel and provided for the security of debtors. (113)

In addition to the contribution made by those declarations, Ohio, in 1802, added the stipulation that schools and universities within the state shall be open to everyone. (114) In 1821, New York established that no one shall be deprived of the rights of citizenship except by the law of the land. (115) Alternatively, California declared in 1849 that "[r]epresentation shall be apportioned according to population." (116) Although these rights failed to find immediate approval and imitation in subsequent declarations of the period, (117) they have long been regarded as essential rights in the United States.

There can be no doubt that the evolution of human rights in the United States was a common effort of almost all the states. While no new stipulations were added to the Massachusetts Constitution of 1780 (even though the rights catalog continued to grow) (118) it may easily be concluded that the contribution of the states to the evolution of human rights in America, and to what is considered the human rights heritage of the country today, is much greater than the consistent fixation on the national Bill of Rights seems to suggest.

The Evolving Catalog I: From Passive Protection to Active Rights

Of the three subdivisions of American declarations of rights--fundamental principles, actively conferred rights, and passively granted protection--the first group was the least dynamic. After the Virginia Declaration of Rights of 1776 was written with its three fundamental principles, no new "first principle" was added throughout the whole period under consideration. (119) Until the end of the eighteenth century, the percentage of respective stipulations with regard to granted protections, in a cumulative rights catalogue, remained at about 50%. (120) Change came with the new century where almost two thirds of the eight new stipulations added to the catalogue between 1802 and 1821 actively conferred rights. (121) Additionally, more than half of the eleven new stipulations added between 1832 and 1849 actively conferred rights. (122) Obviously, conferring these active rights was considered more important than mere passive protection.

The declarations of rights, drafted between 1802 and 1849, confirm this impression. With few exceptions, in all of these declarations, those stipulations actively conferring rights largely surpassed those passively granting protection. (123) At a time when the individual had to use all of his energy to move ahead and the United States was expanding across the continent, it appeared to be more important to provide the individual with a list of the rights that he could rely on and use, rather than emphasizing protections that a comparatively weak and presumably far-away government was unlikely to successfully grant.

An investigation of the twenty stipulations, most often cited in the American declarations of rights, confirms these results. (124) They appear in at least thirty of the fifty-one constitutions. Only five of the twenty most popular stipulations passively granted protection: the searches and seizures or warrant clause and the subordination of the military under civil power (each cited forty times), the ban on ex post facto laws and the rule of just compensation (each cited thirty-five times), and finally, the protection against compulsory contributions to churches (cited in thirty-four declarations). (125) The other fifteen stipulations actively conferred rights, with the sole exception of the clauses proclaiming the sovereignty of the people (cited thirty-eight times). (126) Even if the number of stipulations conferring rights almost matched those granting protection, the declarations of rights by the American states, especially in the nineteenth century, generally focus much more on active rights than on passive protection. If compared with the constitutions of 1776 and those in the late eighteenth century, the American declarations of rights placed a greater emphasis on individual rights rather than government protection by the mid-nineteenth century and had definitely changed in character. (127)

The Evolving Catalogue II: From Political Issues to Economic Activities

The change in the general character of the American declarations of rights also becomes apparent when analyzing their content and structure. Of Virginia's twenty-six declarations of rights, three resorted to "first principles." (128) Of the remaining twenty-three stipulations, thirteen may properly be called political rights, whereas two others, the freedom of the press and religion relate very closely to them. (129) These fifteen stipulations were placed at the beginning, as well as the end, of Virginia's Declaration of Rights (130) and are divided by eight clauses, each belonging to a different category.

When, from a perspective of hierarchical order, we inquire as to what happened to the nine stipulations on ranks three through eleven (131)--the initial two clauses proclaimed "first principles"--again, we find six of them among the initial eleven stipulations in the Maryland Declaration of Rights and five at the beginning of the Pennsylvania Declaration of 1776. (132) At the end of the period under consideration here, in Illinois in 1848 and in California in 1849, only a single one remained, (133) while in New York in 1846 and in Wisconsin in 1848 none of them remained. (134)

These alterations imply more than simply a change in hierarchy. Of all the initial political stipulations contained in the Virginia Declaration of 1776--the right to resistance; no exclusive emoluments; separation of powers; rotation in office; free elections; the right of suffrage; assent or consent of the legislature; and no suspending of laws without consent of the legislature just two survived after seventy years; the right to free elections in Illinois, and the right to resistance in California. All of the other political stipulations disappeared, perhaps not always completely from the American state constitutions, but at least from their declarations of rights. Instead of a principle of rights, the retained political stipulations became a matter of the structure and design of government, thus gradually transforming initially postulated rights into assured political practice. (135) However, at least two stipulations of the latter part of the Virginia Declaration enjoyed lasting popularity in terms of political rights: the clause against standing armies (to reappear in twenty-seven declarations up

to 1849) (136) and the subordination of the military power (in forty declarations). (137)

The Virginia Declaration of Rights started with recourse to natural law, the sovereignty of the people, and the right to resistance in order to continue with clauses on political rights, and to finish with proclaiming religious freedom. (138) Most of the subsequent declarations continued to begin with the recourse to natural law, to the sovereignty of the people, or both. (139) From Pennsylvania in 1790 through California in 1849, the right to resistance appeared in either second, third, or fourth place, in more than twenty declarations. (140) But with regard to the other Virginia Declaration stipulations, its hierarchy completely dissolved. The Declaration of Rights of Delaware of 1776 had already put religious freedom in second place, (141) an elevated rank of first to fourth place, (142) which was subsequently adopted by half of the constitutions, including the Bill of Rights of the Federal Constitution. (143)

The liberty of the press also progressed--fourteen times among the first seven places (144)--though the federal Bill of Rights was less indicative of the growing importance of this liberty than in the case of religious freedom. In 1848, Wisconsin--with a second rank--conferred liberty of press to the most elevated place among American declarations of rights. (145)

Beyond the realm of political rights, changes were more subtle. Approximately 37% (seven out of nineteen) of the new stipulations inserted into the declarations of rights from 1802 to 1849 contained economic connotations. (146) This meant that, by 1849, almost half of all economic stipulations in the American rights catalogue (seven out of seventeen) had originated in the nineteenth century. (147) Though less than a full-fledged revolution, the economic sphere gained considerable importance and had an increased impact on constitutional developments. This trend was expressed not only by the just compensation clauses, inserted into thirty-five declarations; but even more so by the clause promoting security for debtors, first introduced in Pennsylvania in 1790, (148) and adopted in twenty-two declarations due to its popularity among the agrarian states of the West. (149) The clause demonstrates that it was not solely large-scale industrial or financial interests that shaped the laws of the states. Rather, state constitutions, especially those in the western states, created laws to account for the extreme economic hardship endured by farmers and members of the middle class.

American Exceptionalism: The Rules of Criminal Procedure as Human Rights

More important than the economic stipulations were those concerning criminal procedure and criminal law. Of all stipulations actively conferring rights, more than one third (seventeen of forty-five) dealt with rules of criminal procedure or criminal law generally. (150) No other group of active rights was of comparable size. Already introduced in the Virginia Declaration of Rights, these stipulations, together with the liberty of the press and religious freedom, made up the bulk of the American declarations of the period. (151) At the forefront was the trial by jury, "the very palladium of free government," (152) "the best security for the citizens ... against public and private wrongs." (153) Trial by jury was the only stipulation to appear in all fifty-one declarations. (154) Other prevalent rights included the rights of the accused in criminal procedures--a complex group of rights, including the right of a speedy public trial, the right to meet the witnesses face to face, and to obtain witnesses in one's favor (in forty-four declarations); and the right not to be compelled to give evidence against oneself (in forty-one declarations). (155) Similarly popular were the due process clauses, enacting the right to be judged by one's peers or the law of the land (in thirty-eight declarations); the ban on excessive bail (in thirty-seven declarations); the writ of Habeas Corpus (in thirty-six declarations); the ban on both ex post facto laws (in thirty-five declarations) and cruel and unusual punishment (in thirty-four declarations); and the double jeopardy clause (in thirty-two declarations). (156) Although both the Habeas Corpus and the double jeopardy clauses were introduced into the American human rights catalogue only in 1777 and 1784, respectively, their popularity since the 1790s was discernibly greater than expressed by the given figures. (157) Once introduced, these clauses experienced a remarkable level of acceptance.

Besides these more or less generally accepted rights, each era added its own proper notions. The right of accusation by a grand jury was a contribution to the catalogue made by the Federal Bill of Rights. (158) In 1792, Delaware insisted that newly erected prisons pay regard to the health of the prisoners. (159) Four years later, Tennessee ruled that prisoners had a right not to be treated with unnecessary rigor. (160) All of these clauses reflect the lasting impact of the English criminal law tradition and the growing awareness of the need for thorough reform. In 1776, Maryland was the first state to declare "[t]hat sanguinary laws ought to be avoided," (161) an appeal subsequently repeated, ultimately resulting in the clear statement set forth in the Maine Declaration of Rights of 1819: "Sanguinary laws shall not be passed." (162) The reason for the widespread opposition against capital punishment was remarkably expressed in a very Beccarian (163) way in New Hampshire in 1784: "All penalties ought to be proportioned to the nature of the offence .... For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate, mankind." (164) This last remark traveled as far west as Illinois in 1848. (165)

The singularity of the American declarations of rights did not consist in their stipulations on criminal law and its ultimate reform, but rather in the elevated number of their stipulations concerning criminal procedure. This predominance becomes even more apparent over the decades leading up to the mid-nineteenth century. Initially, the percentage of stipulations concerning criminal procedure and criminal law ranged from 20% to 25%, but dropped proportionally with the radicals in Pennsylvania in 1776 to just over 17%. (166) By the middle of the nineteenth century, the percentage of stipulations concerning criminal procedure and criminal law had risen considerably to comprise between one-third and one-half of all stipulations in any given declaration of rights. (167) Even if their rank had hardly changed, in importance the whole section was second to none. It contributed to the strongly individualistic character of the American declarations at the expense of rights of a more general nature. This included the right--missing in every constitution--not to be imprisoned for more than twenty-four hours without order of an independent judge, and those rights that imply stronger state action to ward off threats and aspirations from other individuals or social or religious groups. In the persistent American subliminal conflict between individual and government, framers of constitutions came to rely more and more on the former and to reject the latter. But far from expressing a return to the radicalism of the summer of 1776, this development marked the beginning of a rising American populism.

Whereas in the late eighteenth century the jury was considered to symbolize the voice of the people and was therefore taken to be the principal bulwark protecting the individual against tyrannical aspirations of the government (a conviction which had been largely reinforced by the English experience of the seventeenth century and for the colonists

by British politics before American independence), (168) after 1830 the jury gained importance in the political and economic world. (169) Time and again the individual had to rely on the jury in defending his property against the speculation and the avarice of the great industrial and railroad companies. (170) Here lay the reasons for the exceptional character of the American declarations of rights of the period when compared to similar declarations in other parts of the world: in the realization, saturated by plentiful experience, that declarations of rights were utterly worthless as long as the individual was not vested with the necessary judicial means to take legal action to enforce them.

From "First Principles" to the Hierarchy of Rights

The American declarations of rights did not restrict themselves to proclaiming general political principles or sublime axioms about man in society and his relationship with government. On the contrary, except for the recourse to natural law and the sovereignty of the people proclaimed in Virginia in 1776--to which Maryland quite precisely added the political right of the people to govern themselves (171)--the American declarations, in general, were limited to exact and practical notions. Formulas and standard phrases that were generally accepted were always repeated in the respective stipulations over time and throughout the states. There was no ambition to invent a new expression at every occasion for a long-established and sufficiently known right. This method tends to give the declarations a repetitive character and permits their authors to be accused of merely copying preceding declarations and being intellectually undemanding. Its merit, however, is that it facilitates the recognition of homogeneous rights and easily reveals even minor deviations. Continuity in right, thus, easily becomes apparent, and uncertainties about content are minimized. (172)

The precise and pragmatic character of the declarations also determined the nature of their change. From the beginning, some rights were considered more important than others and this may be expressed by their numerical rank in the document. (173) An alteration in place could mean a change in significance. But, whether a stipulation was taken up by subsequent declarations, or not, likewise indicates its importance and level of acceptance at the time. The question of whether accumulation of offices was an issue or not is presumably better answered by the fact that no further declaration inserted it, rather than by the rank of the clause in the Maryland Declaration. (174) Repetition, therefore, expresses more than merely copying. It is a valuable indicator informing us which rights were considered to merit being inserted into the human rights catalogue.

Notable changes also occurred in another area. In 1776, the notion took hold that a modern constitution should consist of two parts: a Declaration of Rights and a "Form" or "Frame of Government." (175) Obviously, the Declaration of Rights constituted the first part, for "a Constitution in its Proper Idea intends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges, against any Encroachments of the Governing Part." (176) The Declaration of Rights preceded the constitution proper in Virginia, Delaware, and Maryland. (177) In 1776, Pennsylvania was the first state to make both texts two parts of one document, (178) an example followed by other states in subsequent years, even without formally dividing the document into two parts, with the Declaration of Rights, as article one, preceding the rest of the constitution. (179)

The situation was different for those states that did not have a proper declaration of rights. Normally, a simple enumeration of various rights was located at the end of the document. New Jersey was the first state to incorporate their citizens' rights in this manner, followed closely by Georgia, New York, and South Carolina. (180) The classic example was the inclusion of the Bill of Rights at the end of the Federal Constitution. (181)

While the amendments in the Bill of Rights were being ratified into the Federal Constitution, Pennsylvania adopted its new constitution of 1790 in an effort to rid itself of the radicalism of the 1776 version. (182) As part of this process, Pennsylvania reduced the Declaration of Rights to an article known as Article IX, inserted at the end of the document, immediately before the schedule. From 1790 through the middle of the nineteenth century, one third of the constitutions generally mirrored Pennsylvania's example, incorporating an article of citizen's rights at the end of the constitution, while the majority continued to adhere to the 1776 tradition, beginning with the Declaration of Rights. (183)

Transforming the Declaration of Rights from a catalogue preceding the constitution to an article at the end changed the character of both the constitution and the Declaration of Rights. Originally, a constitution began by defining the rights of the individual before establishing and conferring rights and power to the branches of government. It was this recitation of human rights and respect for such rights that conferred legality to the subsequently erected branches of government and to the acts those branches would perform. By moving the Declaration of Rights to the end of the document, after delineating the functions and responsibilities of government, the human rights catalogue seemed a hollow description of yet another government function. It had become an item of legitimate government action where special rights and restrictions had to be respected. In practical terms this alteration may not have directly changed any legal or political rights associated with the declaration. However, in terms of constitutional theory, it undermined the whole structure of 1776: instead of the Declaration of Rights giving legitimacy to government power, now the constitution seemed to confer legality to the Declaration of Rights, with political repercussions that can still be felt today.

This was a dramatic change, and despite two centuries of fierce debate about how far the Federal Bill of Rights extends, this change has passed largely unnoticed. However, the drafters of the constitution generally knew what their goals were. With the exception of Pennsylvania's 1790 and 1838 constitutions, as well as Kentucky's 1792 and 1799 constitutions, (184) no other constitution, with the declaration of rights placed at its end, repeated the principles enunciated in the Maryland Declaration of Right of 1776, "[t]hat this Declaration of Rights ... ought not to be altered, changed or abolished, by the Legislature of this State." (185) In contrast, from 1816 to 1845, nine constitutions with the declaration of rights at the beginning took up the Maryland example and entrenched their declaration of rights. The meaning of the declaration of rights within the system of modern constitutionalism was open to conservative challenge. One immediate result was the refusal of Louisiana, the only new state to do so, to include a declaration of rights in its constitution of 1812, even though the rest of it was largely copied from the Kentucky constitution of 1799, which included an extended declaration. (186)

HUMAN RIGHTS AS CONSTITUTIONALIZED IN THE UNITED STATES AND IN FRANCE

For more than a century, the debate has been rampant over the impact of the American declarations of rights on the French Declaration of the Rights of Man and Citizen of 1789. (187) However, instead of trying to assess the merits of this debate, it may be worthwhile to emphasize that the character of the American declarations is substantially different from the French Declaration of 1789. (188) It is difficult to find statements in any of the American declarations on liberty and equality, social barriers and distinctions, the principles of liberty and the law, the character of the law, obedience to the law, (189) public power, or the foundation of the constitution, which correlate to the statements made in the French stipulations. (190) Twelve of the twenty-one stipulations in the French Declaration deal with fundamental principles: (191) three actively confer rights, while six passively grant protection. (192) The rights actively conferred were social (two) and economic (one), whereas the passively granted protection applied to the political domain (one), the economic domain (two), and to criminal law (three). (193) Apart from conformity in a few specific points, it is hard to imagine how the Declaration of the Rights of Man and Citizen of 1789 would fit into the American context of the late eighteenth and the first half of the nineteenth centuries.

To be sure, the American ideas from the summer of 1776--assuming the people to be the guardians and guarantors of their rights--clearly corresponded with French ideas thirteen years later. But in America, these ideas rapidly gave way to the more powerful concept of the necessity to limit the power of the government, which, as already developed by Madison and Hamilton in the Federalist Papers, meant the power of the legislature and, in final resort, the power of the people. This concept is without any substantive foundation in France, where the revolution had to establish legitimate authority, as emphasized in Michel Troper's essay on a Jeffersonian perspective of the French Declaration. (194) Even the incessant democratization of American politics and society in the nineteenth century, and especially in the Jacksonian era, failed to bring the country closer to the ideas of the French Declaration. On the contrary, it strengthened the position of the individual with regard to government and opened--especially in the West--the road to populism.

The purpose of the American declarations of rights was and continues to be different from that of the French Declaration. The majority of the rights declared in the United States empower individuals to take legal actions whenever they feel that their rights are threatened or infringed upon. In France, on the other hand, the Declaration serves to assure the proper conduct of the state according to democratic principles and the rule of law, and provides the individual with limited means to take legal action on the basis of the Declaration. (195) Two hundred years of political and judicial debate about the meaning of the Federal Bill of Rights and the states' declarations of rights, especially during the second half of the twentieth century, reinforced by debates about the states' declarations of rights have contributed to a climate of opinion in the United States which seems to be much more sensitive to individual rights and the role and the limit of government power in a climate of rampant antigovernmentalism than in France, where a comparably long human rights tradition was often superceded by questions of political legitimacy with the consequence of a debate centering not on the individual and his rights but on the theory of the state and its power. (196)

A MODIFIED HERITAGE

Though the American states, as almost all other constitutions today, continue to declare rights, they all act, to a large extent, upon the basis of a late-eighteenth century heritage. But in the case of the American state constitutions up to the middle of the nineteenth century, this heritage had been considerably transformed. The declared rights had been made legally enforceable, and as a whole they had been thoroughly individualized. It was not the community--the French would have said the Republic--that defined the rights of the individual as a member of society. This was an idea that had animated many Americans in the summer of 1776, especially the Pennsylvania radicals. Instead, in the subsequent decades, it more and more became the self-seeking and self-sufficient individual, who mistrusted politicians and governments having made use of elitist politics after 1776 in setting barriers against unlimited majority rule, to rely for his rights not on legislatures but on courts. This shift of argument transformed the American declarations of rights during the first half of the nineteenth century and let exclusively political rights and granted government protection appear less important than the weaponry of positive rights especially in the field of court procedure and economics.

In this changing situation, it was a sign of nostalgia, when the political elite of Virginia assembled in convention in 1829 and 1830, at the end of a decade in which they had definitely lost what previously had seemed their inherited right of providing the nation with its chief executive, announced that the Virginia Declaration of Rights of June 12th, 1776 "as the basis and foundation of government [required] in the opinion of this convention no amendment." (197) Compared with the tenor of the declarations of rights being authored more than half a century after its first appearance, the original document with its language of moral appeal and political protection appeared completely outmoded.

The American mainstream especially in the North and the West of the 1830s and 1840s, reached out for new answers in the attempt to equip the individual with effective rights in the rough and tumble, but ever more significant market-place. This was a different world than that of the Revolutionary era, requiring different instruments. But whatever its changing character, the American declarations as a whole--and in marked contrast to the French experience--continued to privilege the United States by a unique history and documentary wealth of declarations of rights by states--a fact that is still not adequately appreciated today. The history of the American declarations of rights before 1789 is much more than merely a prehistory of the Federal Bill of Rights. It was the states and their declarations of rights that developed and promoted human rights after 1791 and throughout the first half of the nineteenth century, whereas the Federal Constitution by and large remained deaf. (198)

The singular importance of American state declarations of rights--the promotion of individual's rights--must be weighed against their inadequacies--the omission of important rights which had long since been secured in the constitutions of other countries. (199) Generally speaking, they were definitively less creative than others have been in different places. (200) Though the declarations of rights for American states, with these limitations, were an expression of the perceived exigencies of their time and place, their historical contribution to the overall development of human rights is significantly more important than the general neglect of this history suggests. It remains to be seen whether the "New Federalism" or Justice Brennan's repeated request for a more thorough regard of state constitutions along with other more recent efforts will help to correct the unilateral fixation on the national Bill of Rights, (201) but in order to assess the historical importance of the states' declarations of rights, further efforts will still be needed.

APPENDIX I: RIGHTS DECLARED, BY CONSTITUTION AND YEAR

(Only those 51 constitutions that contained human rights; italics mean that no new right was added to the human rights catalogue. In these 51 constitutions the Federal Constitution with its Bill of Rights is only counted once, and the Virginia Constitution of 1830 is not considered, as its art. I prefixed the Declaration of Rights of 1776 to the constitution, without any modification)
State, Year Right

VA, 1776 1) Recourse to law of nature

 2) Popular sovereignty

 3) Right to resistance

 4) No exclusive emoluments

 5) Separation of powers

 6) Rotation in office (legislative and/or
 executive)/term limits

 7) Free (and frequent/equal) elections

 8) Right of suffrage

 9) Security of property

 10) Assent/consent of legislature (people)

 11) No suspending of laws without consent of
 legislature

 12) Rights of accused in criminal prosecutions

 13) Trial by jury in criminal law cases

 14) Right against self-incrimination

 15) Due process of law

 16) No excessive bail or fines

 17) No cruel and unusual punishment

 18) Searches and seizures/warrant clause

 19) Trial by jury in civil law cases

 20) Freedom of the press

 21) Militia

 22) No standing army in time of peace

 23) Subordination of military to civil power

 24) Uniform government

 25) Recurrence to first principles

 26) Religious liberty

NJ, 1776 27) Right of succession in case of suicide

 28) No compulsory contribution to churches

 29) No established church

 30) No religious tests (for protestants)

MD, 1776 31) Right to self government

 32) Freedom of speech and debates in legislature

 33) Legislature frequently/conveniently to convene

 34) Right of petition

 35) Poll tax

 36) Proportional contribution for support of
 government

 37) Death penalty/Penalty proportioned to nature of
 offence

 38) No ex post facto law

 39) No bill of attainder

 40) Right to remedy

 41) No quartering in time of peace

 42) Freedom from martial law

 43) Independency of judges/Impartial administration
 of justice

 44) No accumulation of offices

 45) No acceptance of foreign presents etc.

 46) No monopolies

 47) No titles of nobility or hereditary honors, offices,
 etc.

 48) Entrenchment of Declaration

DE, 1776 49) Conscientious objectors

PA, 1776 50) Right to bear arms

 51) Right to emigrate

 52) Right to assemble

NC, 1776 53) Criminal procedure by indictment, presentment,
 or impeachment

GA, 1777 54) Entail/primogeniture

 55) Habeas Corpus

NY 1777 56) No special courts

VT, 1777 57) No slavery or involuntary servitude

 58) Private property subservient to public uses

 59) Just compensation

 60) Warrant only upon oath

 61) Right to be tried in State where offence committed

SC, 1778 62) Protestant religion as established religion

MA, 1780 --

NH, 1784 63) Double jeopardy

 64) Compensation of juries

 65) Annual pensions for actual services only

VT, 1786 66) Tax raise only when services to be improved

US, 1787 67) No law impairing the obligation of contracts

GA, 1789 --

US, 5th am. 68) Indictment only by Grand Jury

SC, 1790 --

PA, 1790 69) Law of libel

 70) Right to jury of vicinage

 71) No commission of oyer and terminer

 72) Security for debtor

KY, 1792 --

DE, 1792 73) Jails to be healthy

NH, 1792 --

VT, 1793 --

TN, 1796 74) No unnecessary rigor in jail

 75) Free navigation of the Mississippi

GA, 1798 --

KY, 1799 --

OH, 1802 76) Education open to all

 77) Proportional distribution of U.S. land grants to
 religious societies

 78) Incorporation of associations

LA, 1812 --

IN, 1816 --

MS, 1817 79) No arrest without law (Nulla poena sine lege)

 80) Right to seek justice in civil causes before state
 tribunals

IL, 1818 81) No new banks except State bank

CT, 1818 --

AZ, 1819 --

ME, 1819 82) Law of treason

MO, 1820 --

NY, 1821 83) Right of citizenship only to be deprived by due
 process of law

DE, 1831 --

MS, 1832 84) No property qualifications for office and suffrage

TN, 1834 --

MI, 1835 --

AR, 1836 --

TX, 1836 --

PA, 1838 --

FL, 1839 --

RI, 1842 85) Presumption of innocence

 86) Rights of fishery

NJ, 1844 87) No public money for private enterprise

LA, 1845 --

TX, 1845 --

IA, 1846 88) No duels

 89) Same property rights for foreigners

NY, 1846 90) No divorce to be granted by legislature

 91) No lotteries

 92) No feudal tenures

WI, 1848 93) Writs of error

IL, 1848 --

CA, 1849 94) Representation apportioned according to
 population

By comparison:

France, 1789 95) Freedom and equality

96) Social distinctions but according to common
 utility

97) Principle of liberty

98) Principle of law

99) Quality of law

100) Offices and callings open to all

101) Obedience to law

102) Public force

103) Political responsibility

104) Basis of constitution

APPENDIX II: GROUPING OF RIGHTS DECLARED

Declaration of/recurrence to first principles: 1, 2, 25

Stipulations that confer political rights: 3, 7, 8, 30, 31, 32, 34,
84, 94

Stipulations that confer societal rights: 20, 26, 49, 50, 51, 52,
62, 76

Stipulations that confer economic rights: 75, 77, 78, 86, 89

Stipulations that confer rights in criminal procedure: 12, 13, 14,
15, 16, 17, 53, 55, 61, 63, 68, 69, 70, 71, 82, 85, 93

Stipulations that confer rights to secure property: 19, 27, 59

Stipulations that confer rights to secure one's right: 40, 80

Stipulations that confer rights to state against individual: 58

Stipulations that grant protection of political rights: 4, 5, 6,
10, 11, 18, 21, 22, 23, 24, 33, 41, 42, 43, 44, 45, 47, 48, 57,
65, 83

Stipulations that grant protection of societal rights: 28, 29,
88, 90, 91

Stipulations that grant protection of economic rights: 9, 35, 36,
46, 54, 66, 67, 72, 81, 87, 92

Stipulations that grant protection of criminal rights: 7, 38, 39,
56, 60, 64, 73, 74, 79

Result:

First principles = 3,2%; conferring active rights = 47,8%; granting
passive protection = 48,9%

1776/78: nrs. 1-62

First principles = 4,8%; conferring active rights = 45,2%; granting
passive protection = 50%

1780s and 1790s: nrs. 63-75

First principles = 0%; conferring active rights = 50%; granting
passive protection = 50%

1802-1821: nrs. 76-83

First principles = 0%; conferring active rights = 62,3%; granting
passive protection = 37,5%

1832-1849: nrs. 84-94

First principles = 0%; conferring active rights = 54,5%; granting
passive protection = 45,5%

1776/78: nrs. 1-62 1776: nrs. 1-53

Pol. R. = 7 Pol. P. = 19
Soc. R. = 7 Soc. P. = 2
Econ. R. = 0 Econ. P. = 6
Crim. Proc. = 9 Crim. Law = 5
Sec. Prop. = 3
Gar. R. = 1
State v. Ind. = 1

Pol. R. = 7 Pol. P. = 18
Soc. R. = 6 Soc. P = 2
Econ. R. = 0 Econ. P. = 5
Crim. Proc. = 7 Crim. Law = 3
Sec. Prop. = 2
Gar. R. = 1
State v. Ind. = 0

1780s and 1790s: nrs. 63-75

Pol. R. = 0 Pol. P. = 1
Soc. R. = 1 Soc. P. = 0
Econ. R. = 1 Econ. P. = 3
Crim. Proc. = 5 Crim. Law = 3

1802-1821: nrs. 76-83

Pol. R. = 0 Pol. P. = 1
Soc. R. = 1 Soc. P. = 0
Econ. R. = 2 Econ. P. = 1
Crim. Proc. = 1 Crim. Law = 1
Gar. R. = 1

1832-1849: nrs. 84-94

Pol. R. = 2 Pol. P. = 0
Soc. R. = 0 Soc. P. = 3
Econ. R. = 2 Econ. P. = 2
Crim. Proc. = 2 Crim. Law = 0

By comparison: France 1789 = 21 stipulations

First principles = 57,1% (12); conferring active rights = 14,3% (3);
granting passive protection = 28,6% (6)

Distribution of the 9 rights and protections:

Pol. R. = 0 Pol. P. = 1
Soc. R. = 2 Soc. P. = 0
Econ. R. = 1 Econ. P. = 2
Crim. Proc. = 0 Crim. Law = 3

APPENDIX III: POPULARITY INDEX, BY NUMBER OF CONSTITUTIONS TO CITE
RIGHT DECLARED

51 Trial by jury in criminal cases 1776 Crim.Proc.

49 Freedom of the press 1776 Soc.R.

 Religious liberty 1776 Soc.R.

44 Rights of accused in criminal prosecutions 1776 Crim.Proc.

41 Right against self-incrimination 1776 Crim.Proc.

40 Searches and seizures/warrant clause 1776 Pol.P.

 Subordination of military to civil power 1776 Pol.P.

39 Right of petition 1776 Pol.R.

38 Popular sovereignty 1776 F.P.

 Due process of law 1776 Crim.Proc.

37 No excessive bail or fines 1776 Crim.Proc.

 Right to assemble 1776 Soc.R.

36 Habeas Corpus 1777 Crim.Proc.

35 No expost facto law 1776 Crim.Law

 Just compensation 1777 Sec.Prop.

34 No cruel and unusual punishment 1776 Crim.Proc.

 No compulsory contribution to churches 1776 Soc.P.

 No religious tests (for protestants) 1776 Pol.R.

32 Right to resistance 1776 Pol.R.

 Double jeopardy 1784 Crim.Proc.

30 Right to remedy 1776 Soc.R.

 No quartering in time of peace 1776 Pol.P.

28 Law of libel 1790 Crim.Proc.

27 Recourse to law of nature 1776 F.P.

 No standing army in time of peace 1776 Pol.P.

 No bill of attainder 1776 Crim.Law

 Right to bear arms 1776 Soc.R.

26 Free (and frequent/equal) elections 1776 Pol.R.

 No titles of nobility or hereditary honors, 1776 Pol.P.
 offices, etc.

24 No suspending of laws without consent of 1776 Pol.P.
 legislature

22 Security for debtor 1790 Econ.P.

18 No exclusive emoluments 1776 Pol.P.

 Trial by jury in civil law cases 1776 Sec.Prop.

 Criminal procedure by indictment, 1776 Crim.Proc.
 presentment, etc.

16 Assent/consent of legislature 1776 Pol/Econ.P.

15 Right to emigrate 1776 Soc.R.

14 Recurrence to first principles 1776 F.P.

 Entrenchment of Declaration 1776 Pol.P.

13 Right of succession in case of suicide 1776 Sec.Prop.

 No law impairing the obligation of 1787 Econ.P.
 contracts

 Indictment only by Grand Jury 1789 Crim.Proc.

12 Security of property 1776 Econ.P.

 Right to self government 1776 Po].R.

 Proportional contribution for support of 1776 Econ.P.
 government

 Conscientious objectors 1776 Soc.R.

11 Right of suffrage 1776 Pol.R.

 Militia 1776 Pol.P.

 Death penalty/Penalty proportioned to 1776 Crim.Law
 nature of offence

 Freedom from martial law 1776 Pol.P.

10 Right to jury of vicinage 1790 Crim.Proc.

 9 No slavery or involuntary servitude 1777 Pol.P.

 8 No monopolies 1776 Econ.P.

 Law of treason 1819 Crim.Proc.

 7 Rotation in office 1776 Pol.P.

 No established church 1776 Soc.P.

 6 Separation of powers 1776 Pol.P.

 Freedom of speech and debates in 1776 Pol.R.
 legislature

 Right to be tried in State where offence 1777 Crim.Proc.
 committed

 Legislature frequently to convene 1776 Pol.P.

 Independency of judges/Impartial 1776 Pol.P.
 administration of justice

 No acceptance of foreign presents etc. 1776 Pol.P.

 Entail/primogeniture 1777 Econ.P.

 No commission of oyer and terminer 1790 Crim.Proc.

 No unnecessary rigor in jail 1796 Crim.Law

 No arrest without law (Nulla poena sine 1817 Crim.Law
 lege)

 Uniform government 1776 Pol.P.

 Private property subservient to public uses 1777 St.vs.Ind.

 Right to seek justice in civil causes 1817 Crim.Law
 before state tribunals

 Same property rights for foreigners 1846 Econ.R.

 Poll tax 1776 Econ.P.

 No special courts 1777 Crim:law

 Warrant only upon oath 1777 Crim.Law

 Compensation of juries 1784 Crim.Law

 Annual pensions for actual services only 1784 Pol.P.

 Tax raise only when services to be improved 1786 Econ.P.

 Jails to be healthy 1792 Crim.Law

 Freedom of navigation of the Mississippi 1796 Econ.R.

 Right of citizenship only to be deprived by 1821 Pol.P.
 due process

 No duels 1846 Soc.P.

 No feudal tenures 1846 Econ.P.

 No accumulation of offices 1776 Pol.P.

 Protestant religion as established religion 1778 Soc.R.

 Education open to all 1802 Soc.R.

 Proportional distribution of U.S. land 1802 Econ.R.
 grants to religious ...

 Incorporation of associations 1802 Econ.R.

 No new banks except State bank 1818 Econ.P.

 No property qualifications for office and 1832 Pol.R.
 suffrage

 Presumption of innocence 1842 Crim.Proc.

 Rights of fishery 1842 Econ.R.

 No public money for private enterprise 1844 Econ.P.

 No divorce to be granted by legislature 1846 Soc.P.

 No lotteries 1846 Soc.P.

 Writs of error 1848 Crim.Proc.

 Representation apportioned according to 1849 Pol.R.
 population

APPENDIX IV

Structure of human rights catalogue in 51 Constitutions
(Federal Constitution of 1787 and Bill of Rights of 1791
counted separately)

ID Const./R. 1 2 3 4 5 6 7 8 9

 1 VA1776 1 2 3 4 5 6 7 8 9
 2 NJ1776 1 27 26 28 29 30 13
 3 MD1776 2 31 13 9 3 7 8 5 11
 4 DE1776 2 26 28 30 31 3 7 8 11
 5 PA1776 1 26 28 30 31 2 4 3 6
 6 NC1776 2 31 4 5 11 7 12 14 53
 7 GA1777 54 26 28 16 55 20 13
 8 NY1777 26 21 49 13 39 56
 9 VT1777 1 57 58 59 26 28 30 31 2
10 SC1778 26 62 28 37 15 23 20
11 MA1780 1 26 31 2 4 47 3 6 7
12 NH1784 2 1 26 28 31 47 4 3 7
13 VT1786 1 57 58 59 26 28 30 40 31
14 US1787 55 39 38 36 47 45 67
15 GA1789 20 13 55 26 28 54
16 SC1790 26 2 15 39 38 23 16 17 47
17 PA1790 1 2 3 26 28 30 7 13 20
18 US1791 29 26 20 52 34 21 50 41 18
19 KY1792 1 4 2 3 26 28 30 7 13
20 DE1792 26 28 30 7 13 20 69 18 12
21 NH1792 2 1 26 28 31 47 4 3 7
22 VT1793 1 57 58 59 26 28 30 40 31
23 TN1796 2 3 26 28 30 7 13 18 15
24 GA1798 20 13 38 72 55 26 28 29 30
25 KY1799 1 4 2 3 26 28 30 7 13
26 OH1802 1 2 3 57 26 28 30 59 18
27 LA1812 11 12 13 70 14 55 38 20 51
28 IN1816 1 2 3 26 28 30 7 19 11
29 MS1817 1 4 2 3 26 30 20 69 18
30 IL1818 1 2 26 28 30 7 13 18 15
31 CT1818 1 4 2 3 26 20 69 18 12
32 AL1819 1 4 2 3 26 28 30 29 20
33 ME1819 1 2 31 3 26 30 20 69 18
34 MO1820 2 31 3 52 34 50 26 28 30
35 NY1821 83 13 56 26 21 49 55 68 12
36 DE1831 26 28 30 7 13 20 69 18 12
37 MS1832 1 4 2 3 26 30 20 69 18
38 TN1834 2 3 26 28 30 7 13 18 15
39 MI1835 2 3 4 26 28 30 20 69 18
40 AR1836 1 2 3 26 28 30 7 13 20
41 TX1836 1 4 2 3 26 20 69 18 12
42 PA1838 2 3 26 28 30 7 13 20 69
43 FL1839 1 2 3 26 7 8 20 13 18
44 RI1842 2 26 28 30 57 40 18 68 63
45 NJ1844 1 2 3 26 28 29 30 20 69
46 LA1845 11 53 13 70 14 12 55 38 67
47 TX1845 2 3 1 4 30 26 28 20 69
48 IA1846 1 2 3 29 26 28 30 88 24
49 NY1846 83 13 19 26 30 55 16 17 68
50 WI1848 57 20 69 52 34 13 19 16 17
51 IL1848 2 26 28 30 7 13 19 18 15
52 CA1849 1 2 3 13 19 26 30 55 16

ID Const./R. 10 11 12 13 14 15 16 17 18

 1 VA1776 10 11 12 13 14 15 16 17 18
 2 NJ1776
 3 MD1776 32 33 34 10 35 36 37 17 38
 4 DE1776 33 34 36 9 10 49 38 40 15
 5 PA1776 7 8 36 9 10 49 12 13 14
 6 NC1776 13 16 17 18 15 40 19 20 10
 7 GA1777
 8 NY1777
 9 VT1777 4 3 6 7 8 36 9 49 10
10 SC1778
11 MA1780 8 36 9 10 59 40 12 14 15
12 NH1784 8 36 9 10 49 40 12 14 15
13 VT1786 2 4 3 6 7 8 36 9 49
14 US1787
15 GA1789
16 SC1790 13 20
17 PA1790 69 18 12 70 14 15 53 63 59
18 US1791 68 63 14 15 59 13 12 19 16
19 KY1792 20 69 18 12 70 14 15 53 63
20 DE1792 14 15 53 63 59 40 11 16 17
21 NH1792 8 36 9 10 49 40 12 14 15
22 VT1793 2 4 3 7 8 36 9 49 10
23 TN1796 12 13 14 63 38 27 74 53 55
24 GA1798
25 KY1799 20 69 18 12 70 14 15 53 63
26 OH1802 20 69 40 13 11 74 12 13 14
27 LA1812
28 IN1816 59 18 20 69 40 74 12 13 14
29 MS1817 12 13 14 15 79 53 63 59 40
30 IL1818 12 13 70 14 53 63 59 40 55
31 CT1818 13 14 15 68 79 59 40 16 55
32 AL1819 18 12 13 14 15 53 79 63 59
33 ME1819 12 13 70 14 15 68 63 37 16
34 MO1820 29 7 40 59 13 12 70 14 15
35 NY1821 63 14 15 59 20 69
36 DE1831 14 15 53 63 59 40 11 16 17
37 MS1832 12 13 14 15 79 53 63 59 40
38 TN1834 12 14 63 38 39 27 74 53 55
39 MI1835 13 70 12 19 68 63 55 50 23
40 AR1836 69 18 15 12 14 63 37 53 39
41 TX1836 13 14 15 68 47 45 63 65 16
42 PA1838 18 12 70 14 15 53 63 10 59
43 FL1839 15 40 12 14 55 16 17 63 59
44 RI1842 16 17 37 55 12 13 15 72 38
45 NJ1844 18 13 19 12 68 63 55 23 41
46 LA1845 59 20 51
47 TX1845 18 13 14 12 53 55 16 17 40
48 IA1846 20 69 18 13 12 68 63 55 23
49 NY1846 12 63 14 15 59 20 69 52 34
50 WI1848 12 68 63 14 55 40 82 18 39
51 IL1848 12 14 68 63 10 59 40 55 37
52 CA1849 17 68 12 63 14 15 59 20 69

ID Const./R. 19 20 21 22 23 24 25 26 27

 1 VA1776 19 20 21 22 23 24 25 26
 2 NJ1776
 3 MD1776 39 40 12 14 15 16 17 18 21
 4 DE1776 12 13 14 16 17 18 21 22 23
 5 PA1776 15 18 19 20 50 22 23 25 51
 6 NC1776 50 22 23 52 34 26 7 25 47
 7 GA1777
 8 NY1777
 9 VT1777 12 13 14 15 18 60 19 20 50
10 SC1778
11 MA1780 13 18 19 20 50 22 23 25 52
12 NH1784 63 13 37 18 19 64 20 38 21
13 VT1786 10 66 12 13 14 15 18 60 19
14 US1787
15 GA1789
16 SC1790
17 PA1790 40 11 16 17 55 71 72 38 39
18 US1791 17
19 KY1792 59 40 11 16 17 55 72 38 39
20 DE1792 73 55 71 27 52 34 22 23 41
21 NH1792 63 13 37 18 19 64 20 38 21
22 VT1793 66 12 13 14 15 18 19 20 32
23 TN1796 16 17 40 72 20 69 38 59 52
24 GA1798
25 KY1799 59 40 11 16 17 55 72 38 39
26 OH1802 63 55 16 17 37 72 38 39 61
27 LA1812
28 IN1816 63 55 16 17 37 72 38 39 52
29 MS1817 11 16 17 55 72 38 39 27 52
30 IL1818 37 72 38 39 61 25 52 34 36
31 CT1818 39 52 34 50 23 41 47 13
32 AL1819 40 11 16 17 55 72 38 39 27
33 ME1819 17 55 39 38 82 11 42 52 34
34 MO1820 63 55 16 17 18 53 82 27 20
35 NY1821
36 DE1831 73 55 71 39 27 52 34 22 23
37 MS1832 11 16 17 55 72 39 38 84 27
38 TN1834 16 17 40 72 20 69 38 67 10
39 MI1835 41 82 39 38 67 16 17 59 52
40 AR1836 55 16 38 67 46 47 52 34 50
41 TX1836 17 40 72 10 59 50 23 21 82
42 PA1838 40 11 16 17 55 71 72 38 67
43 FL1839 69 53 39 38 67 52 34 50 41
44 RI1842 67 14 85 59 86 23 42 41 20
45 NJ1844 82 16 17 59 72 52 34 87
46 LA1845
47 TX1845 63 50 39 38 67 59 72 15 23
48 IA1846 22 41 82 16 17 59 72 52 34
49 NY1846 90 91 2 92
50 WI1848 38 67 59 92 89 72 26 28 30
51 IL1848 72 57 38 67 39 61 25 23 52
52 CA1849 52 34 24 23 22 41 94 72 39

ID Const./R. 28 29 30 31 32 33 34 35

 1 VA1776
 2 NJ1776
 3 MD1776 22 23 41 42 43 6 44 45
 4 DE1776 41 43 20
 5 PA1776 52 34
 6 NC1776 46 38
 7 GA1777
 8 NY1777
 9 VT1777 22 23 25 51 52 34 61
10 SC1778
11 MA1780 34 11 32 33 10 38 39 16
12 NH1784 22 23 41 10 11 32 33 52
13 VT1786 20 32 11 50 22 23 42 25
14 US1787
15 GA1789
16 SC1790
17 PA1790 27 52 34 50 22 23 41 47
18 US1791
19 KY1792 27 52 34 50 22 23 41 47
20 DE1792 47 45
21 NH1792 22 23 41 10 11 32 33 52
22 VT1793 11 50 22 23 42 25 51 52
23 TN1796 34 46 21 22 23 42 50 41
24 GA1798
25 KY1799 27 52 34 50 22 23 41 47
26 OH1802 25 52 34 50 22 23 42 41
27 LA1812
28 IN1816 34 50 23 41 47 51 48
29 MS1817 34 50 22 23 41 47 51 80
30 IL1818 81 20 69
31 CT1818
32 AL1819 52 34 50 22 23 41 47 51
33 ME1819 50 22 23 41 40 19 59 10
34 MO1820 69 38 72 49 36 47 51 23
35 NY1821
36 DE1831 41 47 45 48
37 MS1832 52 34 50 22 23 41 47 51
38 TN1834 59 46 52 34 21 22 23 42
39 MI1835 34 48
40 AR1836 41 23 48
41 TX1836 38 46 54
42 PA1838 39 27 52 34 50 22 23 41
43 FL1839 22 23 46 47 25 48
44 RI1842 52 34 50
45 NJ1844
46 LA1845
47 TX1845 46 54 52 34 11 48
48 IA1846 39 38 67 89 57
49 NY1846
50 WI1848 23 93 25
51 IL1848 34 41 20 69 88
52 CA1849 38 67 89 57 18 82

ID Const./R. 36 37 38 39 40 41 42 43

 1 VA1776
 2 NJ1776
 3 MD1776 26 28 30 20 46 47 48
 4 DE1776
 5 PA1776
 6 NC1776
 7 GA1777
 8 NY1777
 9 VT1777
10 SC1778
11 MA1780 17 41 42 43 5
12 NH1784 34 16 17 42 43 65 5 25
13 VT1786 51 52 34 61
14 US1787
15 GA1789
16 SC1790
17 PA1790 51 48
18 US1791
19 KY1792 51 48
20 DE1792
21 NH1792 34 16 17 42 43 65 5 25
22 VT1793 34 61
23 TN1796 49 75 47
24 GA1798
25 KY1799 51 48
26 OH1802 35 47 76 77 78
27 LA1812
28 IN1816
29 MS1817 48
30 IL1818
31 CT1818
32 AL1819 13 80 48
33 ME1819 47
34 MO1820 41
35 NY1821
36 DE1831
37 MS1832 13 80 6 48
38 TN1834 50 41 49 75 47
39 MI1835
40 AR1836
41 TX1836
42 PA1838 47 51 48
43 FL1839
44 RI1842
45 NJ1844
46 LA1845
47 TX1845
48 IA1846
49 NY1846
50 WI1848
51 IL1848
52 CA1849


(1) Gerald Stourzh, Fundamental Laws and Individual Rights in the 18th Century Constitution, in THE AMERICAN FOUNDING: ESSAYS ON THE FORMATION OF THE CONSTITUTION 159, 166 (J. Jackson Barlow et al. eds., 1988).

(2) 31 Car. II. c. 2 (The Statutes of the Realm, Printed by Command of His Majesty King George the Third, In Pursuance of an Address of the House of Commons of Great Britain. From Original Records and Authentic Manuscripts, V, 1819, 935-938). Cf. Stourzh, supra note 1, at 167.

(3) 1 Gul. & Mar. Sess. 2, c. 2 (The Statutes of the Realm, supra note 2, at VI, 142-145). Cf. Stourzh, supra note 1, at 167.

(4) 12 & 13 Gul. III. c. 2 (The Statutes of the Realm, supra note 2, at VII, 636-638). The official title of the Act of Settlement was "An act for the further limitation of the crown, and better securing the rights and liberties of the subject."

(5) Stourzh, supra note 1, at 172-73 (making the argument that, by including in a constitution those "natural, essential, and unalienable rights" that man is born with, those natural rights were legalized).

(6) Id. at 164.

(7) Cf. Timothy H. Breen, The Lockean Moment. The Language of Rights on the Eve of the American Revolution; An Inaugural Lecture Delivered before the University of Oxford on 15 May 2001, Oxford: Oxford University Press, 2001 (on file with author).

(8) See Stourzh, supra note 1, at 169; see also Gerald Stourzh, "Vom aristotelischen zum liberalen Verfassungsbegriff. Staatsformenlehre und Fundamentalgesetze in England und Nordamerika im 17. und 18. Jahrhundert" [1977], id., "Grundrechte zwischen Common Law und Verfassung. Zur Entwicklung in England und den nordamerikanischen Kolonien im 17. Jahrhundert" [1981], id., "Zur Konstitutionalisierung der Individualrechte in der Amerikanischen und Franzosischen Revolution" [1976], all three articles again in: id., Wege zur Grundrechtsdemokratie. Studien zur Begriffs- und Institutionengeschichte des liberalen Verfassungsstaates, Vienna and Cologne: Bohlau, 1989, 1-35, 75-89, 155-74 (on file with author).

(9) See Stourzh, supra note 1, at 170-71 (describing the principles of laws that were used to give individual rights).

(10) James Wilson, Lectures on Law, in 1 THE WORKS OF JAMES WILSON 2, 28 (Robert Green McCloskey ed., 1967).

(11) James Wilson, Lectures on Law, in 2 THE WORKS OF JAMES WILSON, 592 (Robert Green McCloskey ed., 1967).

(12) THE POPULAR SOURCES OF POLITICAL AUTHORITY: DOCUMENTS ON THE MASSACHUSETTS CONSTITUTION OF 1780, at 330-31 (Oscar Handlin & Mary Handlin eds., 1966) (discussing the idea that when men form a society, they are considered to be '"one moral whole"') [hereinafter "THE POPULAR SOURCES OF POLITICAL AUTHORITY"].

(13) Id. at 331.

(14) On state constitutions with a broad perspective, cf. JAMES QUAYLE DEALEY, GROWTH OF AMERICAN STATE CONSTITUTIONS, FROM 1776 TO THE END OF THE YEAR 1914, at 24-55, 124-27, 254-69 (1972) (1915); M. BARBARA MCCARTHY, THE WIDENING SCOPE OF AMERICAN CONSTITUTIONS 4-5, 31-33 (1928); Albert L. Sturm, The Development of American State Constitutions, 12 PUBLIUS: THE JOURNAL OF FEDERALISM 57, 57-98 (1982). On the revolutionary period, see generally, GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969); WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA (1980); DONALD S. LUTZ, POPULAR CONSENT AND POPULAR CONTROL: WHIG POLITICAL THEORY IN THE EARLY STATE CONSTITUTIONS (1980); DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM (1988); MARC W. KRUMAN, BETWEEN AUTHORITY & LIBERTY: STATE CONSTITUTION MAKING IN REVOLUTIONARY AMERICA (1997); THOMAS B. MCAFFEE, INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING (2000). For an interesting perspective on the history of the Federal Bill of Rights, see generally ROBERT ALLEN RUTLAND, THE BIRTH OF THE BILL OF RIGHTS, 1776-1791 (1997); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY OF RIGHTS (1987); WILLIAM E. NELSON & ROBERT C. PALMER, LIBERTY AND COMMUNITY: CONSTITUTION AND RIGHTS IN THE EARLY AMERICAN REPUBLIC (1987); THE HISTORIC BACKGROUND OF THE BILL OF RIGHTS: THE BILL OF RIGHTS AND AMERICAN LEGAL HISTORY (Paul L. Murphy ed., 1990); A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS AND LAW, 1791 AND 1991 (Michael James Lacey et al. eds., 1992); THE BILL OF RIGHTS AND THE STATES: THE COLONIAL AND REVOLUTIONARY ORIGINS OF AMERICAN LIBERTIES (Patrick T. Conley & John P. Kaminski eds., 1992); Donald S. Lutz, The State Constitutional Pedigree of the U.S. Bill of Rights 22 PUBLIUS: THE JOURNAL OF FEDERALISM 19, 19-45 (1992); THE BILL OF RIGHTS: GOVERNMENT PROSCRIBED (Ronald Hoffman & Peter J. Albert eds., 1998); AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (2000); LEONARD WILLIAMS LEVY, ORIGINS OF THE BILL OF RIGHTS (2001). Comparative studies of state declarations of rights are almost non-existent for the succeeding period up to the Civil War, see generally FLETCHER MELVIN GREEN, CONSTITUTIONAL DEVELOPMENT IN THE SOUTH ATLANTIC STATES, 1776-1860 (Da Capo Press 1971) (1930); DON E. FEHRENBACHER, SECTIONAL CRISIS AND SOUTHERN CONSTITUTIONALISM (1995); LAURA J. SCALIA, AMERICA'S JEFFERSONIAN EXPERIMENT: REMAKING STATE CONSTITUTIONS, 1820-1850 (1999). For a look at twentieth century constitutionalism see generally STANLEY H. FRIEDELBAUM, HUMAN RIGHTS IN THE STATES: NEW DIRECTIONS IN CONSTITUTIONAL POLICYMAKING (1988); THE BILL OF RIGHTS & THE STATES (Paul L. Murphy ed., 1990).

(15) Unless otherwise indicated, the standard edition of THE FEDERAL AND STATE CONSTITUTIONS: COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA (Francis Newton Thorpe ed., 1909) [hereinafter "FEDERAL AND STATE CONSTITUTIONS"], is used in spite of its two major insufficiencies, which it shares with the two other collections by Poore and Swindler: The unreliability of its published texts, especially for the late eighteenth century and the first half of the nineteenth century, and its complete disregard of all official drafts never adopted. I am preparing an edition of all constitutions, declarations of rights, and their official projects of the world on an authentic text basis for the period 1776 through 1849. This collection is scheduled to be published from 2004-05 by the Saur Company in Munich, Germany. For the period from 1850, cf. CONSTITUTIONS OF THE WORLD 1850 TO THE PRESENT/VERFASSUNGEN DER WELT 1850 BIS ZUR GEGENWART (Horst Dippel ed., 2002) (Pt. I: Europe, 2002-04; Pt. II: The Americas, 2004-; Pt. III-V: Africa, Asia, Australia, to follow).

(16) FEDERAL AND STATE CONSTITUTIONS, supra note 15.

(17) Id.; see also infra app. I., app. IV.

(18) See David Skeels, Due Process and the Massachusetts Constitution, 84 MASS. L. REV. 76, 81 (1999) (asserting that the Massachusetts constitution of 1778 was rejected because it did not sufficiently protect fundamental liberties of the people); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 830 (1995) (arguing that the Massachusetts constitution of 1778 was rejected because "it did not adequately safeguard the rights of property").

(19) Cf. LOUIS ADAMS FROTHINGHAM, A BRIEF HISTORY OF THE CONSTITUTION AND GOVERNMENT OF MASSACHUSETTS (1916) (on file with author), 21-2; MASSACHUSETTS, COLONY TO COMMONWEALTH: DOCUMENTS ON THE FORMATION OF ITS CONSTITUTION, 1775-1780 at 49, 68-70, 73-89 (Robert J. Taylor ed., 1961) (on file with author); THE POPULAR SOURCES OF POLITICAL AUTHORITY, supra note 12 at 22, 28, 169-379.

(20) See Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 8 (1988) (emphasizing that "ratification of the Constitution depended upon the promise of a forthcoming bill of rights"); cf. THE FEDERALIST NOS. 84, 85, at 579-88 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (indicating the importance of the adoption of the Bill of Rights as evidenced by Hamilton's fierce opposition). The most thorough investigation on the topic is THE CONSTITUTION AND THE STATES: THE ROLE OF THE ORIGINAL THIRTEEN IN THE FRAMING AND ADOPTION OF THE FEDERAL CONSTITUTION (Patrick T. Conley & John P. Kaminski eds., 1988). A major source for it continues to be I-V THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787 (Jonathan Elliot ed., 1836-1846).

(21) On the origins of the Virginia Declaration of Rights of 1776 see Brent Tarter, The Virginia Declaration of Rights, reprinted in TO SECURE THE BLESSINGS OF LIBERTY: RIGHTS IN AMERICAN HISTORY 37, 39 (Josephine F. Pacheco ed., 1993). The first scholar to clearly emphasize the importance of the early declarations of rights was Marc W. Kruman. KRUMAN, supra note 14, at 37-59. On the subsequent period, see SCALIA, supra note 14, at 27-47; Kermit L. Hall, Of Floors and Ceilings: The New Federalism and State Bills of Rights, 44 FLA. L. REV. 637, 641-45 (1992). For an opposing view, cf. WOOD, supra note 14, at 271-73.

(22) See generally N.J. CONST. of 1844, RIGHTS AND PRIVILEGES, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2599-2600; GA. CONST. of 1798, art. IV, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 800-01; N.Y. CONST. of 1846, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2653-55; S.C. CONST. of 1790, arts. VIII, IX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3264; LA. CONST. of 1852, tit. VI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1422-25.

(23) See ARTICLES OF CONFEDERATION of 1777, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 9-17; CONST. OF COAHUILA AND TX. of 1827, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3495-3520; PROVISIONAL CONST. OF TX. of 1835, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3520-26.

(24) See CA. CONST. of 1849, DECLARATION OF RIGHTS, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 391-92 (establishing the Constitution so that the people of California may be able to "secure [the] blessings" of freedom).

(25) See infra text accompanying app. I. Together with the ten constitutions containing a restricted number of rights, but no Declaration proper, the overall number of constitutions to be analyzed in this paper is fifty-one.

(26) See infra notes app. IV.

(27) See CONST. OF MD. of 1776, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1686-91; CONST. OF NH. of 1784, BILL OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2453-70; CONST. OF NH. of 1792, BILL OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2471-75.

(28) See THE AMERICAN POUNDING: ESSAYS ON THE FORMATION OF THE CONSTITUTION 170 (J. Jackson Barlow et al. eds., 1988) (referring to types of individual rights: "some are natural and unalienable, of which even the people cannot deprive individuals"); see also MILTON R. KONVITZ, FUNDAMENTAL RIGHTS: HISTORY OF A CONSTITUTIONAL DOCTRINE 6-7 (2001) (questioning whether various constitutional guarantees are of "equal dignity and worth").

(29) See infra text app. II.

(30) See generally Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in the Protection of Individual Rights, 23 RUTGERS L.J. 727, 730-31, 734 (1992).

(31) See generally MINUTES OF THE GRAND COMMITTEE OF THE WHOLE CONVENTION OF THE DELAWARE STATE (1791), reprinted in PROCEEDINGS OF THE HOUSE OF ASSEMBLY OF THE DELAWARE STATE 1781-1792 AND OF THE CONSTITUTIONAL CONVENTION OF 1792, at 777 (Claudia L. Bushman et al. eds., 1988) (stating "[t]hat the Declaration of Rights [of the Constitution of 1776] should be amended ... to enumerate, and more precisely to define, the Rights reserved out of the general Powers of Government; and to render it consistent with the Constitution to be agreed upon").

(32) See VA. CONST. of 1776, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3812-14 (cited in this source as "Bill of Rights").

(33) VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 2, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights").

(34) See VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 7, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights") (declaring that creating or repealing laws without permission from the people's representatives is detrimental to their rights).

(35) See generally THOMAS B. MCAFFEE, INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING 14 (2000) (stating that placing power in the hands of the people was the way Americans protected themselves against the executive).

(36) See infra app. I (pointing out that, among early constitutions, the Maryland constitution was only surpassed by Virginia's constitution in the number of new rights it reserved for the people).

(37) See infra app. II (calculating the number of stipulations that grant protection of citizen rights to garner a percentage value).

(38) See infra app. I (listing the new rights of the people in each constitution).

(39) See MD. CONST. of 1776, DECLARATION OF RIGHTS, [subsection] XV-XVII, XXXI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1688.

(40) See MCAFFEE, supra note 35, at 13 (indicating that the notion of popular sovereignty was the underlying philosophy behind the making of state constitutions).

(41) See id. (quoting the Delaware constitution's declaration that "the right of the people to participate in the Legislature, is the best security of liberty'").

(42) MD. CONST. of 1776, DECLARATION OF RIGHTS, [section] VIII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1687.

(43) MD. CONST. of 1776, DECLARATION OF RIGHTS, [section] X, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1687.

(44) See MD. CONST. of 1776, DECLARATION OF RIGHTS, [subsection] XXVI, XXXI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1688-89.

(45) MD. CONST. of 1776, A DECLARATION OF RIGHTS, [section] XII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1687 (requiring that they only be levied with the consent of the legislature).

(46) MD. CONST. of 1776, A DECLARATION OF RIGHTS, [section] XLII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1690-91.

(47) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3082-84; see generally VT. CONST. of 1777, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3737-49; VT. CONST. of 1786, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3749-61; VT. CONST. of 1793, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3762-81 (demonstrating the similarities to the Pennsylvania Declaration).

(48) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, arts. X, XII, XIII, XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3083-84.

(49) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, art. XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3084.

(50) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, art. XIV, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3083-84.

(51) See infra apps. I, III, and IV; see generally PA. CONST. of 1776, A DECLARATION OF RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3082-84; VA. CONST. of 1776, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3812-14 (cited in this source as "Bill of Rights"); DEL. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 562-68; N.C. CONST. of 1776, A DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, 2787-89; VT. CONST. of 1777, I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3739-42.

(52) MASS. CONST. of 1780, Pt. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1889-93.

(53) Id., see N.H. CONST. of 1784, BILL OF RIGHTS, Pt. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV at 2453-57 (following the Massachusetts model); see also infra app. IV.

(54) MASS. CONST. of 1780, Pt. I, art. VII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1890.

(55) See VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 2, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights").

(56) MASS. CONST. of 1780, Pt. I, art. V, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1890.

(57) Id.

(58) VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 2, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights").

(59) WOOD, supra note 14, at 370.

(60) Compare Susan Tiefenbrun, Civil Disobedience and the U.S. Constitution, 32 SW. U. L. REV. 677, 679 (2003), with THE FEDERALIST NO. 51, at 347-53 (James Madison) (Jacob E. Cooke ed., 1961) (demonstrating Madison's changing viewpoint from a belief that revolution should be protected by the Bill of Rights to an ideal recognizing that legislative power and the power of the people should be adjusted to protect the government and the people from tyranny).

(61) James Madison, Speech on Amendments to the Constitution (June 8, 1789), reprinted in 12 THE PAPERS OF JAMES MADISON 203 (Charles F. Hobson & Robert A. Rutland eds., 1979). Cf. Robert A. Goldwin, Congressman Madison Proposes Amendments to the Constitution, in THE FRAMERS AND FUNDAMENTAL RIGHTS 57, 70 (Robert A. Licht ed., 1992) (indicating that although many politicians did not believe that the Bill of Rights was necessary, a majority of Americans felt that it was).

(62) See U.S. CONST. art. I, [subsection] 9, 10, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 22-23 (outlining constitutional restrictions on the power of Congress and the states for the benefit of United States citizens, such as forbidding ex post facto laws).

(63) U.S. CONST. amend. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 29.

(64) See generally KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 62 (1989) (explaining that by the mid-1780's a state constitution, including separation of powers, was recognized as the premiere means of protecting citizens' rights, thus limiting legislative power).

(65) See supra text accompanying notes 54-59.

(66) See generally LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 126, 279 (1981) (discussing the evolution of the English Bill of Rights and Declaration of Rights).

(67) See GOLDWIN SMITH, A HISTORY OF ENGLAND 396 (2d ed. 1957) (arguing that the English Bill of Rights ensured that the monarchy would never dominate over Parliament); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 296 (1996) (noting that the English Bill of Rights protected Parliament from abuse from the crown). See also THE BILL OF RIGHTS (1689), reprinted in FROM MAGNA CARTA TO THE CONSTITUTION: DOCUMENTS IN THE STRUGGLE FOR LIBERTY 37-40 (David L. Brooks ed., 1993) (outlining demands principally relating to Parliament's controls over the power of the monarch).

(68) RAKOVE, supra note 67, at 296 (stating that although a radical interpretation is possible, the English Bill of Rights is generally viewed as a conservative document that did not create any new rights for individuals). See also THE BILL OF RIGHTS (1689), reprinted in FROM MAGNA CARTA TO THE CONSTITUTION: DOCUMENTS IN THE STRUGGLE FOR LIBERTY, supra note 67, at 37-39 (identifying the need for a declaration of rights resulting from King James the Second's conduct--which had diminished previous Parliamentary controls and individual rights).

(69) See DECLARATION AND RESOLVES OF THE FIRST CONTINENTAL CONGRESS, reprinted in FROM MAGNA CARTA TO THE CONSTITUTION: DOCUMENTS IN THE STRUGGLE FOR LIBERTY, supra note 67, at 51, 53 (basing right of individuals on "immutable laws of nature").

(70) See, e.g., ALA. CONST. of 1819, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 96; CAL. CONST. of 1849, art I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 391; MISS. CONST. of 1832, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15., IV, at 2049; CONN. CONST. of 1818, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 536-37.

(71) N.H. CONST. of 1784, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2453.

(72) IOWA CONST. of 1846, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 1123; cf. MISS. CONST. of 1832, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2049; ME. CONST. of 1819, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1646; MASS. CONST. of 1780, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1888-89.

(73) See LUTZ, POPULAR CONSENT AND POPULAR CONTROL, supra note 14, at 65-67 (discussing the difference between the uses of "shall" and "ought" in Bills of Rights).

(74) VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 3, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights").

(75) Id. at [section] 5.

(76) Id. at [section] 6.

(77) Id. at [section] 7.

(78) PA. CONST. of 1776, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3082-83; MA. CONST. of 1780, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1888-93; VT. CONST. of 1777, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3737-42; N.H. CONST. of 1784, BILL OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2453-57.

(79) PA. CONST. of 1790, art IX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3092, 3099-3101. Pennsylvania was preceded by Georgia (1789) and South Carolina (1790), although their constitutions are not considered in this context due to the very limited nature of the rights they declared.

(80) Id.

(81) See generally FEDERAL AND STATE CONSTITUTIONS, supra note 15, I-VII.

(82) See IOWA CONST. of 1846, art. I, [section] 5, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 1124 (disqualifying citizens who engaged in duels from holding state office).

(83) E.g., TEX. CONST. of 1845, art. I, [section] 18, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3549.

(84) E.g., N.Y. CONST of 1846, art. I, [section] 12, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2653-55; WIS. CONST. of 1848, art. I, [section] 14, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 4078.

(85) E.g., VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 5, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights"); MD. CONST. of 1776, DECLARATION OF RIGHTS, [section] VI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1687; N.C. CONST. of 1776, DECLARATION OF RIGHTS, [section] IV, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2787; MASS. CONST. of 1780, DECLARATION OF RIGHTS, art. XXX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1893; N.H. CONST. of 1784 & 1792, BILL OF RIGHTS, art. XXXVII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2457, 2475.

(86) E.g., VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 5, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights"); MD. CONST. of 1776, DECLARATION OF RIGHTS, [section] XXXI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1689; PA. CONST. of 1776, DECLARATION OF RIGHTS, [section] VI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3083; VT. CONST. of 1777 & 1786, DECLARATION OF RIGHTS, [section] VII (1777) & [section] VIII (1786), reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3740, 3752; MASS. CONST. of 1780, DECLARATION OF RIGHTS, art. VIII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1890-91; MISS. CONST. of 1832, DECLARATION OF RIGHTS, ART. I, [section] 30, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2051.

(87) S.C. CONST. of 1778, art. XXXVIII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3255.

(88) See S.C. CONST. of 1790, art. VIII, [section] 1, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3264 (establishing, without reference to any particular state religion, full religious freedom).

(89) TENN. CONST. of 1796, art. XI, [section] 29, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3424.

(90) Nevertheless, this provision reappeared in the Tennessee Constitution in 1834. TENN. CONST. of 1834, art. I, [section] 29, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3428.

(91) GA. CONST. of 1777, art. LX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 785.

(92) VT. CONST. of 1777, DECLARATION OF RIGHTS, art. II, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3740.

(93) N.H. CONST. of 1784, BILL OF RIGHTS, art. XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2455.

(94) MISS. CONST. of 1817, art. I, [section] 11, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2033-34; cf. Declaration of the Rights of Man and Citizen of 1789, [section] 7 (Les Constitutions de la France depuis 1789, ed. by Jacques Godechot, Paris: Flammarion, 1979, 34).

(95) R.I. CONST. of 1842, art. I, [section] 14, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3224; cf. FR. CONST. of 1791, DECLARATION OF THE RIGHTS OF MAN AND CITIZEN, [section] 9, in CONSTITUTIONS THAT MADE HISTORY 84 (Albert P. Blaustein & Jay A. Sigler eds., 1988).

(96) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PA., art. XIII, XV reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3083-84.

(97) See app. IV. For a discussion of the controversies surrounding the right to bear arms, see generally Garry Wills, To Keep and Bear Arms, in WHOSE RIGHT TO BEAR ARMS DID THE SECOND AMENDMENT PROTECT? 65 (Saul Cornell ed., 2000); Michael A. Bellesiles, The Origins of Gun Culture in the United States, 1760-1865, in WHOSE RIGHT TO BEAR ARMS DID THE SECOND AMENDMENT PROTECT? 146 (Saul Cornell ed., 2000).

(98) See app. III (demonstrating that only fifteen declarations incorporated the right to emigrate). Only eight states, Vermont, Kentucky, Pennsylvania, Louisiana, Indiana, Mississippi, Alabama, and Missouri, adopted the right to emigrate. App. IV.

(99) See app. I (citing forty-four of the ninety-four stipulations declared).

(100) VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 16, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3814 (cited in this source as "Bill of Rights").

(101) N.J. CONST. of 1776, art. XVIII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2597.

(102) N.J. CONST. of 1776, art. XIX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2597.

(103) N.J. CONST. of 1844, art. I, [section] 4, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2599 (removing the language specific to Protestants, sixty-eight years later).

(104) VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 12, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3814 (cited in this source as "Bill of Rights").

(105) JAMES PATERSON, THE LIBERTY OF THE PRESS, SPEECH, AND PUBLIC WORSHIP: BEING COMMENTARIES ON THE LIBERTY OF THE SUBJECT AND THE LAWS OF ENGLAND 217 (Fred B. Rothman & Co. 1985) (1880).

(106) L.G. MITCHELL, CHARLES JAMES FOX 118 (1992). See also Horst Dippel, The Theory and Practice of the British Constitution in the Late Eighteenth Century, in IL MODELLO COSTITUZIONALE INGLESE E LA SUA RECEZIONE NELL'AREA MEDITERRANEA TRA LA FINE DEL 700 E LA PRIMA META DELL'800: ATTI DEL SEMINARIO INTERNAZIONALE DI STUDI IN MEMORIA DI FRANCISCO TOMAS Y VALIENTE (MESSINA, 14-16 NOVEMBRE 1996) 197-98 (Andrea Romano ed., 1998).

(107) PA. CONST. of 1790, art. IX, [section] 7, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3100.

(108) See generally THE WHOLE PROCEEDINGS ON THE TRIAL OF AN INFORMATION EXHIBITED EX OFFICIO, BY THE KING'S ATTORNEY GENERAL, AGAINST JOHN STOCKDALE; FOR A LIBEL ON THE HOUSE OF COMMONS, TRIED IN THE COURT OF KING'S-BENCH WESTMINSTER, ON WEDNESDAY, THE NINTH OF DECEMBER, 1789, BEFORE THE RIGHT HON. LLOYD LORD KENYON, CHIEF JUSTICE OF ENGLAND: TAKEN IN SHORT HAND BY JOSEPH GURNEY, reprinted in THE WHOLE PROCEEDINGS ON THE TRIAL OF JOHN STOCKDALE 1790, at 31-97, 121-228 (Stephen Parks ed., Garland Publishing Inc. 1974) (1790) (containing an address to the jury by Thomas Erskine and an argument in support of the rights of juries also by Thomas Erskine).

(109) PA. CONST. of 1776, A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH, OR STATE OF PENNSYLVANIA, arts. XIII, XV, XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3083-84.

(110) CONST. OF GA. of 1777, art. LX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 785.

(111) VT. CONST. of 1777, ch. I, [subsection] I, II, XIX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3739-40, 3742.

(112) N.H. CONST. of 1784, pt. I, [section] XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2455.

(113) PA. CONST. of 1790, art. IX, [subsection] 7, 16, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3100-01.

(114) OHIO CONST. of 1802, art. VIII, [section] 25, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2911-12.

(115) N.Y. CONST. of 1821, art. VII, [section] 1, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2647. The New York clause originated from disputes over suffrage rights of African-Americans. See PETER J. GALIE, ORDERED LIBERTY: A CONSTITUTIONAL HISTORY OF NEW YORK 76-77 (1996) (discussing the controversy surrounding African-American suffrage).

(116) CAL. CONST. of 1849, art. I, [section] 14, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 392.

(117) See generally ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY 170-73 (1997) (contrasting the state efforts to enfranchise African-Americans with the concurrent federal movement).

(118) See app. I.

(119) See app. I; app. III. See also supra note 28 and accompanying text.

(120) See app. II (indicating that by 1849, the percentage of stipulations granting passive protection was 45.5%).

(121) Cf. app. I with app. II (examining the eight stipulations added between 1802 and 1821, outlined in app. I, with the categorized conferring of active rights, detailed in app. II, to show that five of the eight new stipulations indeed conferred rights, and did not grant passive protection).

(122) Cf. app. I with app. II (examining the eleven stipulations added between 1832 and 1849, outlined in app. I, with the categorized conferring of active rights, detailed in app. II, to show that six of the eight new stipulations indeed conferred rights, and did not grant passive protections).

(123) See app. II (determining that between 1802 and 1821, stipulations conferring rights surpassed those granting protections by approximately 25%, and between 1832 and 1849, rights-conferring stipulations outnumbered protection-granting stipulations by approximately 10%).

(124) Cf. app. II with app. III (enumerating the frequency of stipulations and listing the "[t]rial by jury in criminal cases" through "[d]ouble jeopardy" provisions as the twenty stipulations appearing most often in declarations of rights, fifteen of which were conferring rights).

(125) Cf. app. I with app. II and app. III (creating a comparative structure of the top twenty most popular stipulations, outlined in app. III, with what those structures correlate to in terms of rights, determined by comparing the list of top twenty rights with their corresponding number in app. II and finally arriving at which rights were conferred, detailed in app. I).

(126) Id.

(127) See Kermit L. Hall, Mostly Anchor and Little Sail: The Evolution of American State Constitutions, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 386, 402 (Paul Finkelman & Stephen E. Gottlieb eds., 1991) (characterizing the state constitutions of the period as "[p]ersistent antigovernmentalism").

(128) VA. CONST. of 1776, DECLARATION OF RIGHTS, [subsection] 1, 2, 15, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813-14 (cited in this source as "Bill of Rights")

(129) Cf. app. I with app. II (identifying stipulations #3, 4, 5, 6, 7, 8, 10, 11, 18, 21, 22, 23, and 24 as those in effect in Virginia by 1776 that affected political rights, whereas stipulation #20 and 26 were found to be societal rights).

(130) See VA. CONST. of 1776, DECLARATION OF RIGHTS, [subsection] 3-7, 10, 12, 13, 14, 16, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813-14 (identifying the political rights as well as freedoms associated with press and religion found within the Virginia Declaration of Rights) (cited in this source as "Bill of Rights").

(131) See app. I.

(132) The stipulations of the Virginia Declaration on the right to resistance, separation of powers, free elections and the right of suffrage, the security of property, and the suspending of laws (see VA. CONST. of 1776, DECLARATION OF RIGHTS, [subsection] 3, 5, 6 and 7, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights)) were repeated in the Declaration of Rights of Maryland of 1776, (see MD. CONST. of 1776, DECLARATION OF RIGHTS, arts. III-VII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1686-87). Those stipulations on private emoluments, the right to resistance, rotation in office, free elections and the right of suffrage were repeated in the Constitution of Pennsylvania of 1776 (see PA. CONST. of 1776, DECLARATION OF RIGHTS, arts. V-VII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3082-83).

(133) See the stipulation on free elections and the right to resistance in the Constitution of Virginia of 1776 (see VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 3,6, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3813 (cited in this source as "Bill of Rights")); the right to free elections in the Constitution of Illinois of 1848 (see ILL. CONST. of 1848, DECLARATION OF RIGHTS, [section] 5, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 1007); and the right to resistance in the Constitution of California of 1849 (see CAL. CONST. of 1849, art. I, [section] 2, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 391). What, in this paper, is called the right to resistance refers to the right of the people to change or abolish their constitution. Especially at the beginning of the period under consideration, this right was sometimes effusively declared: "whenever the Ends of Government are perverted, and public Liberty manifestly endangered by the Legislative singly, or a treacherous Combination of both [i.e. the Legislative and Executive Powers], the People may, and of Right ought to establish a new, or reform the old Government." See PROCEEDINGS OF THE CONVENTION OF THE DELAWARE STATE at art. V (1776)) [hereinafter "PROCEEDINGS"]. New Hampshire added in 1784: "[t]he doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." See N.H. CONST. of 1784, Pt. I, art. X, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2455. By the middle of the nineteenth century, in California in 1849, the phrase had become quite prosaic: "[The people] have the right to alter or reform the [government] whenever the public good may require it." See CAL. CONST. of 1849, art. I, [section] 2, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 391.

(134) See N.Y. CONST. of 1846, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2653-75; WIS. CONST. of 1848, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 4077-4104.

(135) See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969).

(136) ANNE NORTON, ALTERNATIVE AMERICAS: A READING OF ANTEBELLUM POLITICAL CULTURE 118 (1986). While the author is correct when she asserts that opposition against standing armies was above all characteristic for the revolutionary generation, her conclusion--namely, that in the first half of the nineteenth century opposition was declining in the North, "while it remained constant in the South"--is fundamentally flawed. On the contrary, between 1802 and 1849 this opposition appeared in the declarations of rights of Ohio, Maine, Pennsylvania, Iowa, California, and Delaware in the North and West, while being included only in the declarations of Mississippi, Alabama, Tennessee and Florida in the South. Again, as the author argues that the subordination of military to civil authority provides proof of "the persistence of classical republican ideology in the South" (id. at 123), it should be noted that until the middle of the nineteenth century this subordination was written into the declaration of rights of twelve Northern states, compared to only six states of the South, including Missouri and Delaware.

(137) See VA. CONST. of 1776, DECLARATION OF RIGHTS, [section] 13, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3814 (cited in this source as "Bill of Rights").

(138) See id. at [section] 16.

(139) See infra app. I.

(140) See infra apps. I and IV.

(141) See PROCEEDINGS, supra note 31, at 918.

(142) See infra apps. I and IV.

(143) See infra apps. I and IV.

(144) See infra apps. I and IV.

(145) See WIS. CONST. of 1848, art. I, [section] 3, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 4077.

(146) See infra app. II.

(147) See infra apps. I, II, and III.

(148) PA. CONST. of 1790, art. IX, [section] 16, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3101.

(149) See infra app. IV. Only the Georgia constitution of 1798, the Pennsylvania constitution of 1838, the Rhode Island constitution of 1842, and the New Jersey constitution of 1844 of the original thirteen adopted it, compared to seventeen constitutions in the trans-Appalachian West.

(150) See infra app. II.

(151) See infra app. III.

(152) THE FEDERALIST No. 83, at 562 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

(153) BENJAMIN L. OL1VER, THE RIGHTS OF AN AMERICAN CITIZEN; WITH A COMMENTARY ON STATE RIGHTS, AND ON THE CONSTITUTION AND POLICY OF THE UNITED STATES 269 (1832).

(154) See infra app. III.

(155) See infra app. III.

(156) See infra app. III.

(157) See GA CONST. of 1777, art. LX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 785; N.H. CONST. of 1784, PA. I, art. XVI, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2455.

(158) U.S. CONST. amend. V, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 29.

(159) DEL. CONST. of 1792, art. I, [section] 11 reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, I, at 569.

(160) TENN. CONST. of 1796, art. XI, [section] 13 reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3423.

(161) MD. CONST. of 1776, art. XIV reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1688.

(162) ME. CONST. of 1819, art. I, [section] 9 reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1647.

(163) See supra note 5.

(164) N.H. CONST. of 1784, Pt. I, art. XVIII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, IV, at 2456.

(165) The phrase was substantively repeated in the Constitution of New Hampshire of 1792, the Constitution of Ohio of 1802, and the Constitutions of Illinois of both 1818 and 1848. See N.H. CONST. of 1792, Pt. I, art. XVIII, at 2473; OHIO CONST. of 1802, art. VIII, [section] 14, at 2911; ILL. CONST. of 1818, art. VIII, [section] 14, at 982, and of 1848, art. XIII, [section] 14, at 1008 reprinted in FEDERAL AND STATE CONSITITUTIONS, IV, V, and II, respectively, supra note 15. However, in mid-nineteenth century California, the constitutional convention failed to adopt a similar proposal. See Christian G. Fritz, More Than "Shreds and Patches": California's First Bill of Rights, 17 HASTINGS CONST. L. Q. 13, 27-28 (1989).

(166) For example, as demonstrated by Appendix I, Virginia's 1776 criminal procedure and criminal law stipulations numbered six out of the total of twenty-six (23%); Maryland's numbered nine out of forty-eight (18.8%); and Pennsylvania's numbered 9 out of 52 (17.3%).

(167) Appendix IV indicates that in 1844, of New Jersey's twenty-six enumerated rights, nine were related to criminal law and procedure (34.6%). Similarly, in 1846 New York included ten criminal stipulations among its total of twenty-two rights (45.5%).

(168) See SHANNON C. STIMSON, THE AMERICAN REVOLUTION IN THE LAW: ANGLO-AMERICAN JURISPRUDENCE BEFORE JOHN MARSHALL 71, 74 (1990).

(169) Cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 84-85 (1977) (explaining that several states prevented juries from determining the amount of damages in cases involving government takings).

(170) Id.

(171) MD. CONST. of 1776, A DECLARATION OF RIGHTS, art. II, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1686.

(172) Cf. Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25 RUTGERS L.J. 945, 975-84 (1994) (describing states experimenting with constitutional revision).

(173) On the question of a hierarchy of rights, cf. MILTON R. KONVITZ, FUNDAMENTAL RIGHTS: HISTORY OF A CONSTITUTIONAL DOCTRINE 1-19 (2001).

(174) MD. CONST. of 1776, A DECLARATION OF RIGHTS, art. XXXII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1689.

(175) See generally THE POPULAR SOURCES OF POLITICAL AUTHORITY, supra note 12, at 152.

(176) Id. at 153.

(177) VA. CONST. of 1776, DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3812 (cited in this source as "Bill of Rights"); MD. CONST. of 1776, A DECLARATION OF RIGHTS, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1686.

(178) PA. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3081. Actually, Delaware had already done so, but under the title In Convention at New-Castle, for the Delaware State, [Wilmington: James Adams, 1776], it had published "A Declaration of Rights ..." (p. 2-4), and "The Constitution or System of Government ..." (p. 4-11), whereas Pennsylvania under the common title of Constitution of Pennsylvania had published "Chapter I: A Declaration of the Rights of the Inhabitants ..." and "Chapter II: Plan or Frame of Government...." The Declaration of Rights of Delaware and the indication that the two parts of the constitution of Pennsylvania were named "Chapter I" and "Chapter II" is missing in Thorpe. For Pennsylvania, cf. Minutes of the Proceedings of the Convention of the State of Pennsylvania, Held at Philadelphia, the Fifteenth Day of July, 1776, Philadelphia: Henry Miller, 1776, at 58-65, and, though not always correct, The Constitution of the Common-wealth of Pennsylvania, Philadelphia: John Dunlap, 1776 (on file with author).

(179) PA. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3081-92. A remarkable exception is North Carolina whose constitution of 1776 is generally published as an integral whole. However, the convention voted separately on the Declaration of Rights (17 December 1776) and the "Constitution or form of government" (18 December 1776), and the Convention Journal listed both parts, correspondingly, separately in its title, see The Journal of the Proceedings of the Provincial Congress of North-Carolina, Held at Halifax the 12th Day of November, 1776. Together with The Declaration of Rights, Constitution, & Ordinances of Congress. Published by Authority, Newbern: Printed by James Davis, Printer to the Honourable the General Assembly, 1777, at 3-9, and the original manuscript in the North Carolina State Archives at Raleigh, NC (on file with author).

(180) Cf. N. J. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2597-98 with GA. CONST. of 1777, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, II, at 784-85, N. Y. CONST. of 1777, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 2636-38, and S. C. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VI, at 3255-57.

(181) See U.S. CONST. amend. I-X.

(182) See supra text accompanying notes 48-51 (describing the radicalism that originated in the Constitution of Pennsylvania 1776); see also supra text accompanying notes 78-80 (describing the change of radical language in Pennsylvania's 1776 constitution to its 1790 constitution).

(183) See generally THORPE, supra note 15.

(184) PA. CONST. of 1790, art. IX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3101. PA. CONST. of 1838, art. IX, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, V, at 3115. See also, KY. CONST. of 1792, art. XII, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1276 and KY. CONST. of 1799, art. X, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1289-91.

(185) MD. CONST. of 1776, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, III, at 1690-91.

(186) Cf. THE LOUISIANA CONSTITUTION OF 1812, Horst Dippel ed., available at www.modern-constitutions.de (last visited Feb. 22, 2004).

(187) Scholarly debate was initiated by Georg Jellinek, Die Erklarung der Menschen- und Burgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte, Leipzig: Duncker & Humblot, 1895, and, with political undertones on both sides, taken up by Emile Boutmy. Today, the positions are well taken by Marcel Gauchet, La Revolution des droits de l'homme, Paris: Gallimard, 1989, 36-59; cf. also the contributions on the origins and the drafting of the Declaration of the Rights of Man and Citizen, in: La Declaration des droits de l'homme et du citoyen de 1789, ses origines--sa perennite, ed. by Claude-Albert Colliard et al., Paris: La Documentation francaise, 1990, 21-155; Terence Marshall, "Les Droits de l'homme et la politique constitutionnelle: Un dialogue franco-americain a l'epoque revolutionnaire", in 1791: La premiere constitution francaise. Actes du colloque de Dijon, 26 et 27 septembre 1991, ed. by Jean Bart et al., Paris: Economica, 1993, 395-408; Eric Peuchot, "L'Influence des idees americaines sur les constituents", in: Gilbert Bodinier et al., La France de la Revolution et les Etats-Unis d'Amerique, Paris: Masson, 1995, 22-34; Michel Troper, ""Jefferson et l'interpretation de la Declaration des droits de l'homme de 1789", in Revue francaise d'histoire des idees politiques, 9 (1998), 3-23 (all on file with author).

(188) FRANCE: DECLARATION OF THE RIGHTS OF MAN AND THE CITIZEN 1789, reprinted in COMPARING CONSTITUTIONS at 208-10 (S.E. Finer et al. eds., 1995). In terms of strict chronology, the debates in America regarding the Bill of Rights and those of the French National Assembly on the Declaration of the Rights of Man and Citizen took place at almost the same time without a direct influence on one another. This was caused not merely by the limited means of communication prevalent at the end of the eighteenth century, but also by the differences in the political and cultural situation. Cf. HELEN E. VEIT ET AL., CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS (1991) with 15 THE PAPERS OF THOMAS JEFFERSON 231-33, 364-68 (Julian P. Boyd ed., 1958) (discussing the influence Thomas Jefferson and the American process had on the French as they were drafting their Declaration of Rights).

(189) Cf. Lucien Jaume, LA LIBERTE ET LA LOI. LES ORIGINES PHILOSOPHIQUES DU LIBERALISME, 331-35 (Fayard 2000) (detailing the significance of "law" in the Declaration of the Rights of Man) (on file with author).

(190) Cf. app. I and app. II.

(191) "Actually, it was the very moment when they seemed to be satisfied with their own abstractions, that it was the purpose of the great principles to operate on society and the democratic government: this was really the intention that animated the initial drafters": Lucien Jaume, Avant-Propos, in LES DECLARATIONS DES DROITS DE L'HOMME: DU DEBAT 1789-1793 AU PREMBULE DE 1946) 19 (Lucien Jaumeed., 1989) (on file with author).

(192) Cf. app. I and app. II.

(193) Cf. app. I with app. II and FINER ET AL., reprinted in COMPARING CONSTITUTIONS, supra note 188, at 208-10 (1995).

(194) Troper, supra note 187""', 13-16.

(195) Cf. Christophe de la Mardiere, "Retour sur la valeur juridique de la Declaration de 1789", REVUE FRANCAISE DE DROIT CONSTITUTIONNEL, 38, 227-56 (1999) (allowing that in its decision of 23 August 1985 on the evolution of New Caledonia, the Constitutional Council stated for the first time "that the law only 'reveals the expression of the General Will', according to the definition of the Declaration of Rights of 1789, 'in its respect for the Constitution', and thus confirms that the question of constitutionality comprises also the passed law, the correction of which belongs to the legislators and not to the Council", cf. Louis Favoreu & LOIC Philip, LES GRANDES DECISIONS DU CONSEIL CONSTITUTIONNEL 652-54 (10th ed. Dalloz 1999) (on file with author).

(196) Raymond Carre de Malberg, Contribution a la Theorie generale de l'Etat specialement d'apres les donnees fournies par le Droit constitutionnel francais, 2 vols., Paris: Recueil Sirey, 1920-1922 (on file with author).

(197) VA. CONST. of 1830, art. I, reprinted in FEDERAL AND STATE CONSTITUTIONS, supra note 15, VII, at 3820.

(198) Cf. Morton Keller, The Politics of State Constitutional Revision, 1820-1930, in THE CONSTITUTIONAL CONVENTION AS AN AMENDING DEVICE, 68-69 (Kermit L. Hall et al. eds., 1981).

(199) For a comparative analysis of the constitutions and declarations of rights drafted outside the United States, see the documents as published at www.modernconstitutions.de.

(200) Cf. CONST. OF GERMANY of 1848, reprinted in CONSTITUTIONS THAT MADE HISTORY 203-16 (Albert P. Blaustein and Jay A. Sigler eds., 1988) (declaring the fundamental rights of the German people in 60 articles, more than any other declaration of rights of the biennium comprised).

(201) Cf. Robert S. Rankin, The Bill of Rights, in MAJOR PROBLEMS IN STATE CONSTITUTIONAL REVISIONS 159-75 (W. Brooke Graves ed., 1960) (1978); William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 489-504 (1977); Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. BALT. L. REV. 379, 379-96 (1980); Developments in the Law: The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1326-1502 (1982).

Horst Dippel, Professor of British and U.S. history at the University of Kassel, Germany; director of the research group "History of Modern Constitutionalism." I wish to thank the editorial staff of the Albany Law Review for their professional work in editing my paper.
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