Not Taking the Constitution Seriously, or Even Literally

Anthony Sanders · July 9, 2022

Iowa’s Supreme Court is in need of a history lesson. On June 30, 2022 it handed down an opinion interpreting the first section of the state’s Bill of Rights. The four (out of seven) justice majority failed to note the historical background of that provision, and in a concurrence one of those justices pontificated on what he thought of it without bothering to find out where it comes from. Thankfully, the three justices in dissent thought differently, and their words can hopefully live to see another day of judicial engagement on the court. For now, however, all I can do here is briefly note how the court got things so wrong.

Iowa’s State of Nature

The Bill of Rights of Iowa’s Constitution begins with a stirring set of words:

All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

This type of clause is exceedingly common in state constitutions. They are often called “inalienable rights clauses,” but Professor Steven Calabresi and his co-author Sofia Vickery have helpfully labeled them “Lockean Natural Rights Guarantees,” a name I prefer. It fits because of the nature of the rights these clauses protect—rights people have in the theoretical “state of nature” that they do not give up (or “alienate”) when they enter society. This, of course, was the view of government that English philosopher John Locke espoused and that was popular at the founding of the United States.

While a few state courts—in an exceedingly anti-textualist fashion—have refused to enforce them and labeled them merely hortatory, many others have taken them to mean what they say. The courts have found the text of the clauses to protect broad categories of rights and also concluded that those rights are judicially enforceable. Calabresi’s and Vickery’s article documents numerous cases leading up to the adoption of the Fourteenth Amendment (in 1868) where courts found laws, or actions of government officials, to violate the rights contained in these clauses. They also document additional cases where courts found that there was no constitutional violation, but only after applying real scrutiny to what the government was trying to do. The same is true for much of the period after 1868. In fact, some states even today use Lockean Natural Rights Guarantees as their primary protection of various liberties that elsewhere courts turn to due process and equal protection clauses to protect. Wisconsin, for example, calls its Lockean Guarantee both its “due process” and “equal protection” clause even though neither of those phrases appear in its text. Over the years its supreme court has found all kinds of laws to violate it.

Masonic Origins

Lockean Guarantees sound a bit like the Declaration of Independence. But they are not originally taken from the Declaration. In fact, the Declaration was taken from them. The first Lockean Guarantee was drafted by George Mason in May 1776 for the Virginia Declaration of Rights. His first draft was later copied by the drafters of the Pennsylvania Constitution and it spread to many other state constitutions. (The first draft was objected to at the Virginia constitutional convention as potentially being anti-slavery so it was tweaked a bit for that state—but it’s interesting that the language of the first draft spread more widely at the time.) Mason’s words were also quickly copied by Thomas Jefferson, making its way into the Declaration less than two months later. Today these Guarantees are all over the place. As I tabulated in this article (footnote 15), 31 states have one in their constitutions.

Not taking text seriously

However, as with many other things in both state and federal constitutional law, in the twentieth century courts enforced these protections less and less. Iowa was never very active in enforcing its Lockean Guarantee, and began applying the modern “rational basis test” to it. (By the way, Iowa had a time in the 1860s where its court was very engaged in enforcing unenumerated rights, but it didn’t last. I discuss it some in this article.)

Many readers will be familiar with this test and how it gives a huge advantage to the government in justifying almost any restriction on someone’s rights. Under its extreme version a court must uphold a law’s constitutionality if a legislature might have believed facts to be true that would make the law seem rational. A sign that a right might only be good in name only is if a court applies the rational basis test to it. Unfortunately, that’s what Iowa’s supreme court started doing despite the clear language that the Lockean Guarantee protects pursuing and enjoying life, liberty, property, safety, and happiness.

But then in 2004 in Gacke v. Pork Xtra, LLC the court gave the clause a bit of teeth. The case concerned a nuisance action by a neighbor of a hog farm. The legislature had passed a “right to farm” act that, among other things, shielded livestock farmers from some nuisance actions. As I’m sure you know, put a lot of animals together and they produce a certain smell. These laws try and prevent neighbors from preventing that smell through nuisance suits. The claim in Gacke was that the law interfered with the landowner’s rights under the Lockean Guarantee. After all, the clause specifically says there’s an inalienable right to “possessing and protecting property.” And the court agreed. And instead of applying the standard rational basis test it constructed a three-part test that gave a bit more “teeth” to landowners who make as-applied claims to that law’s constitutionality.  

Now, even this is pretty weak tea. It’s a somewhat heightened standard for one tiny aspect of all the ways the text of the clause could apply. But it was something. Unfortunately, in the case from last week, Garrison v. New Fashion Pork LLP, the court overruled Gacke and stated that the rational basis test applied. It called Gacke an outlier under in its own interpretation of the Lockean Guarantee and that no other state court had done so under their own state constitution. This was odd if for no other reason than that the court had given a pretty extensive treatment of the clause and its background (including the work of George Mason) in a 2015 case, City of Sioux City v. Jacobsma. There, in a challenge to traffic cameras, the court did not confront many of these issues, but it recognized the special provenance of Lockean Guarantees and how claims brought under them might be different than other claims, such as one under substantive due process (Iowa has a separate due process clause that has been interpreted to have substantive protections).

Concurring without engaging

But things got even worse in Garrison when it came to Justice Mansfield’s concurrence. Even though the Jacobsma case had already given the history of the Lockean Guarantee, he boldly asserted that “Article I, section 1 is essentially a paraphrase of some of the stirring language of our Declaration of Independence.” Again, that’s wrong. It’s taken from George Mason’s work for the Virginia Constitution and has been used in many state constitutions since then. Justice Mansfield seems to make this assertion in order to argue that the Lockean Guarantee isn’t “real law” but just uplifting rhetoric. Again, that’s wrong. The language is as real as the language in 30 other state constitutions that has been used to find real laws really unconstitutional many many times. (And the Declaration is real law too, as Tim Sandefur has explained.)

Justice Mansfield then compares the Lockean Guarantee with the next provision in the Iowa Constitution, Article I, Section 2:

All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.

This clause is also very common in state constitutions, and simply means that “the people” can change the government. It’s pretty obvious it means the people have the right to amend the constitution, or indeed to throw it out and get a new one. Which the people of Iowa have done! The last time being in 1857 when they replaced the previous constitution adopted at the time of statehood.

But Justice Mansfield puts the two provisions together and makes this claim: “Neither of these provisions can possibly be read literally. Do I have a right under section 1 to “obtain[] . . . happiness” from the State of Iowa?”

That joke isn’t funny. It’s ridiculous. The Lockean right to “obtain . . . happiness” isn’t something the state gives you, it’s something you have a right to try and obtain through doing what you think is best for you: Raising a family, pursuing a calling, practicing your religion, exploring a hobby, and the myriad of other things that people find meaningful in life. If the state restricts or forbids these pursuits then the court can consider whether the right has been violated. That’s just like any other right, such as those the First Amendment protects. Indeed, Justice Mansfield then contrasts the rights in the Lockean Guarantee with the ”meat-and-potatoes” (as he calls them) of the Iowa Bill of Rights, such as the right to due process and the right against unreasonable searches and seizures, and says that these rights are real rights that the judiciary can enforce. And because the Lockean Guarantee isn’t, the court should apply the rational basis test (essentially, because that allows the court to sweep it under the rug). He reasons that “It would be illogical to conclude that the general and aspirational statement of rights in article I, section 1 could trump—or be used to alter the effect of—the more direct and specific language” in the other provisions.

Iowa loves rights

Beyond saying go read all of the cases applying Lockean Guarantees throughout the course of U.S. history—including when Massachusetts’s was used to declare slavery unconstitutional—there isn’t room in this already long blog post to point out how many ways this reasoning is wrong. So just one brief point. What Justice Mansfield seems to be saying is it’s illogical for one provision to protect a right more expansively than another provision already does. But that kind of redundancy goes on in constitutions all the time. For example, both the Due Process and Equal Protection Clauses of the Fourteenth Amendment can protect against arbitrary designations, and sometimes laws are found to be unconstitutional under both. And, of course, a law can violate someone’s free speech rights and the same person’s freedom of religion. Indeed, the same law could conceivable violate someone’s right to “freedom of the press” as well. What a Lockean Guarantee does is protect rights beyond the more narrow (but important) rights later enumerated. That makes for a “belt-and-suspenders” approach. It’s also what I’ve called an “etcetera clause.” Indeed, Iowa’s Bill of Rights has another “etcetera clause” at the end, in Section 25, where it copies the Ninth Amendment to state that “This enumeration of rights shall not be construed to impair or deny others, retained by the people.” In other words, the Iowa Constitution takes rights very seriously. There’s the specific protections, there’s the Due Process Clause, there’s the Lockean Guarantee, and there’s even the Baby Ninth Amendment. If the court were properly engaged it would not just ignore all of these provisions, snap its fingers, and say “rational basis.”

The silver lining of the case for Iowans is that the dissents are very strong, and take the Lockean Guarantee seriously. I commend Justice Appel’s especially. That’s not surprising, as he was the author of the Jacobsma case mentioned above. He engages with the history of the clause and argues that its protections are “strong and judicially enforceable.” He even cites two IJ cases from other state supreme courts, Patel v. Texas Department of Licensing & Regulation and Pennsylvania’s Ladd v. Real Estate Commission, that applied higher standards than the rational basis test to their own state constitutions.

The language in state constitutions, just like the language in the U.S. Constitution, matters. If constitutional protections are written broadly then they should be applied broadly. To do otherwise isn’t just an affront to the constitution’s text. It’s an affront to those who wrote and adopted the constitution and, more importantly, those who today depend on its protection of “certain inalienable rights.”

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.