US Constitutional Law: Born Free and Equal Clauses Shaped Lawrence v. Texas

• The "born free and equal" concept originated in the Declaration of Independence and was present in 6 of 12 state constitutions by 1791.
• By 1868, this principle was enshrined in 24 of 37 state constitutions, including Article I of the Massachusetts Constitution of 1780.
• The "born free and equal" idea is considered "deeply rooted in American history and tradition," a standard used to evaluate fundamental rights.
• This "deeply rooted" test has been applied in cases such as *Washington v. Glucksberg*, *McDonald v. City of Chicago*, and *Dobbs v. Jackson Women’s Health Organization*.
• This article specifically examines the application of these historical equality clauses to the Supreme Court's decision in *Lawrence v. Texas*.

The "born free and equal" principle itself is recognized as deeply rooted in American history and tradition, providing a historical anchor for various constitutional arguments.

The concept that individuals are "born free and equal" holds a significant place in American constitutional history, tracing its origins to foundational documents and early state charters. This principle was explicitly articulated in the Declaration of Independence, serving as a cornerstone of the nation's philosophical underpinnings. Its widespread acceptance is further evidenced by its inclusion in numerous state constitutions during critical periods of American legal development.

At the time the federal Bill of Rights was ratified in 1791, six out of the twelve existing state constitutions contained these "born free and equal" clauses. This prevalence grew substantially by 1868, when the 14th Amendment was ratified, with twenty-four out of thirty-seven state constitutions featuring such provisions. This consistent presence underscores the deep-seated nature of this idea within the American legal and political landscape from its earliest days.

A prime example of this foundational language is found in Article I of the Massachusetts Constitution of 1780. This clause unequivocally states: "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." This detailed articulation highlights the comprehensive scope of rights envisioned under these early equality clauses, encompassing fundamental aspects of human existence and well-being.

The enduring relevance of the "born free and equal" idea extends into modern constitutional jurisprudence, particularly through the application of the "deeply rooted in American history and tradition" test. This judicial standard is frequently employed by courts to determine whether a claimed right is fundamental and thus deserving of heightened constitutional protection, often in the context of substantive due process historical context.

The "born free and equal" principle itself is recognized as deeply rooted in American history and tradition, providing a historical anchor for various constitutional arguments. This test has been pivotal in several landmark Supreme Court decisions, illustrating its impact on the scope of individual liberties. For instance, in *Washington v. Glucksberg*, the Court determined that a right to assisted suicide was not deeply rooted in American history and tradition, thus denying it fundamental status.

Conversely, the Court in *McDonald v. City of Chicago* found the Second Amendment's right to own a handgun for self-protection to be deeply rooted, thereby extending its application to the states. More recently, *Dobbs v. Jackson Women’s Health Organization* utilized this same framework to conclude that the right to an abortion was not deeply rooted in American history and tradition. These cases collectively demonstrate how the "deeply rooted" standard, informed by historical principles like the born free and equal clauses, shapes the recognition and protection of rights.

Understanding the historical prevalence of "born free and equal" clauses and their connection to the "deeply rooted in American history and tradition" test provides crucial context for analyzing contemporary constitutional challenges. This ongoing series of articles aims to illuminate the constitutional significance of these foundational equality clauses, exploring their implications for various legal precedents.

This particular installment, the third in a seven-part series, specifically turns its attention to the application of these historical "born free and equal" clauses in the context of *Lawrence v. Texas*. The examination will delve into how the principles embedded in these early state constitutions and the Declaration of Independence might inform or challenge the judicial reasoning in *Lawrence v. Texas*, a case central to discussions of privacy and personal autonomy.

By exploring the born free and equal clause interpretation in relation to *Lawrence v. Texas* constitutional history, this analysis seeks to bridge the gap between historical constitutional principles and modern fundamental rights jurisprudence. It highlights how deeply ingrained concepts of liberty and equality continue to influence the interpretation of individual rights in the present day, offering insights into the evolving nature of constitutional protections.

This article provides critical historical context for constitutional arguments concerning fundamental rights and due process, particularly how the 'deeply rooted in American history and tradition' test is applied. Lawyers can use this understanding to craft more robust constitutional arguments or to anticipate judicial interpretations in cases involving similar clauses and rights.

Source: Original reporting via SCOTUSblog