Most constitutional provisions that protect rights don’t mention how the right is followed in practice at the time the provision is adopted. They just recognize the right, period. For example, the First Amendment states that “Congress shall make no law . . . abridging the freedom of speech”. It doesn’t say “abridging the freedom of speech as it has previously been exercised.” The Fourth Amendment similarly guarantees that “The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated” whether or not it previously was violated. And, going to the state level, the Missouri Constitution has a number of protections of individual liberties, including Article I, Section 9: “That the people have the right peaceably to assemble for their common good”. It doesn’t matter if the state has formerly respected this right in practice, it’s just protected whatever the history may be.

Of course, many “rights,” especially “natural rights,” exist independently of them even being recognized in a constitution. (That’s a point Justice Scalia explained in District of Columbia v. Heller, stating that the Second Amendment “codified a pre-existing right.”) But just because a new constitution protects a right doesn’t mean the same government, or a previous government, had observed it in the past. Indeed, the reason why the Fourteenth Amendment was adopted was to stop the ongoing abuses of rights by the states of the former Confederacy. Similarly, given its wording, Missouri’s protection of peaceful assembly should apply whether or not that right was protected when that provision was adopted.

Did you “heretofore enjoy” it?

But sometimes constitution writers throw a curveball. Another section of the Missouri Constitution does just that. In protecting the right of trial by jury, Section 22(a) of the Missouri Bill of Rights states “That the right of trial by jury as heretofore enjoyed shall remain inviolate”. As heretofore enjoyed? This seems to say that (1) the right is only as it was up to the adoption of the Constitution, and (2) it only is protected to the extent it was “enjoyed.” Not to the extent it existed, was on the books somewhere, or existed in abstract principles of reason, but was actually “enjoyed.”

This language has been in the Missouri Constitution since 1875 and was retained when the state adopted a new constitution in 1945. The three constitutions from before 1875—1820, 1845, and 1865—simply stated “That the right of trial by jury shall remain inviolate.” That, of course, would seem to protect the right whether it was actually followed or not. A few other states have similar language protecting the right to trial by jury. For example, Illinois has a similar provision with the “as heretofore enjoyed” phrasing in its constitution, Article I, Section 13, and has since 1870. (Given the timing, I’d guess Missouri’s change was influenced by Illinois’.) New York has had similar language since 1777, but without “enjoyed.” Currently numbered Article I, Section 2 it says “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever . . .” Pennsylvania’s clause, Article I, Section 6, goes back to 1776, and currently states “Trial by jury shall be as heretofore, and the right thereof remain inviolate.” On the other hand Delaware’s, Article I, Section 4, simply states “Trial by jury shall be as heretofore.”

As you can see, other than Illinois, these other states arguably follow the structure of Missouri’s provision from before 1875, but some are a bit ambiguous on whether the right is as it was “enjoyed” or “guaranteed.” Further, although it’s used in these examples, this “heretofore” is a pretty unusual way to phrase a right compared with how it’s generally done in American constitutions. Instead of looking at past abuses and what the provision is trying to address—such as the Black Codes when interpreting the Fourteenth Amendment or Colonial general warrants when interpreting the Fourth Amendment—we must instead look at how the underlying right was followed in practice.

Contract, not tort

That’s what the Missouri Supreme Court looked at this week in All Star Awards & Ad Specialties, Inc. v. Halo Branded Solutions, Inc. The case involved a very sneaky plan by one company to hire away an employee of a competitor and have him take proprietary information with him in the process. The jury awarded half-a-million dollars in actual damages to the plaintiff, All Star, but then piled on $5.5 million in punitive damages. However, the trial judge then reduced this award by more than half under a state tort reform statute. Not happy in missing out on almost $3 million of its jury verdict, All Star appealed, arguing that the state statute violated “the right of trial by jury as heretofore enjoyed”.

The court stated that this language means, essentially, that if you had a common law right to have a jury decide something when Missouri became a state then that cannot be taken away. But if it’s something that you couldn’t use a jury for in 1820 then the state can rearrange things. To take a very basic example, in 1820—just as today—there was no right to have a jury in equitable cases, such as a request for an injunction. If the legislature suddenly created a right to have juries decide equitable cases, but then took that away five years later, a litigant couldn’t complain that they had lost the right “as heretofore enjoyed.”

The court recognized that punitive damages were available in 1820, although it wasn’t all that ancient a common law practice (the court noted they were only first recognized in England in 1763). But that wasn’t the whole story as the court said that to prevail the plaintiff had to show that punitive damages were available for the specific cause of action the plaintiff brought, or at least an analogous legal claim.

The problem here was the plaintiff brought a claim of “civil conspiracy to breach the duty of loyalty.” That didn’t exist at common law in 1820, but the plaintiff argued it was analogous to an action for trespass, a tort. But the court responded that in 1820 a duty of loyalty “was conceptualized as an implied contract or promise, the breach of which was ordinarily by an action of ‘assumpsit’ or any other action to enforce a contractual right.” In other words, in 1820 the cause of action would be for breach of contract, not for a breach of a duty of loyalty or any other tort. And in 1820 you couldn’t get punitive damages for breach of contract. And that means the legislature can cap punitive damages today, even though today we think of the wrong these defendants were found to do to the plaintiff as a kind of tort. (Further, the opinion includes some hefty quotes from William Blackstone if you’re into that kind of thing (like we are at CJE!).)

Years of decision

Without taking sides on whether the analysis of the history of common law causes of action is correct, the thing that I was left scratching my head about after reading this opinion was the significance of the year 1820. As I said above, the “as heretofore enjoyed” language wasn’t added to the Missouri Constitution until 1875. Between 1820 and 1875 that limitation wasn’t present, and the right was simply “inviolate.” What if the common law changed in the intervening years and punitive damages came to be part of a certain cause of action? Then would the 1875 proclamation that the right “as heretofore enjoyed” apply to such a post-1820 practice? Further, the current constitution is from 1945 and it doesn’t say “as enjoyed prior to 1820,” but just “as heretofore enjoyed.” Doesn’t the “heretofore” mean prior to 1945?

The court didn’t address these questions in the All Star opinion, but seems to have at least glossed over them before. But not a lot more than that. I found a 1996 case, Hammons v. Ehney,where the court said a lower court opinion stating that 1945 was the relevant year was wrong, but it didn’t really provide an explanation other than that it conflicted with previous holdings that held 1820 is the right one. Cases that it cites to are similarly conclusory, and they cite back to older cases that don’t seem to take such a “1820 centric” view. Thus, to the extent this might matter in the future (that is, differences in causes of action and the use of juries between 1820 and 1945) it could be something the court might revisit. Ironically, the “heretofore” language could end up more protecting a right depending on the role of the jury and causes of action expanding during that time.

The 1820 vs. 1945 question is an example of “interconstitutionalism,” something I wrote about earlier this year, the application of older constitutions to newer ones. This week’s case is a great reminder—actually almost three million reminders!—of why understanding state constitutions and their evolution and history can matter a lot, even on a very practical level.

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