Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore: State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? Here is the abstract:
This article examines State Bills of Rights in 1787 and 1791 when the federal Constitution and Bill of Rights were adopted. We seek to answer the question of what fundamental rights are really deeply rooted in American history and tradition by examining the State Bill of Rights culture at the time of the Framing. The U.S. Supreme Court has repeatedly said that substantive due process protects individual rights that are deeply rooted in American history and tradition. This article helps to shed light on what those rights are. It builds on a Texas Law Review article Professor Calabresi published in 2008 which was cited by the plurality opinion in McDonald v. City of Chicago which incorporated the Second Amendment against the States. In this prior article, Professor Calabresi and Ms. Agudo examined rights protected in State Bills of Rights in 1868 – the year the Fourteenth Amendment was ratified. The analysis in this latest article of State Bills of Rights at the Founding extends and completes the project that the Texas Law Review article began.
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