Indiana Supreme Court Gives Natural Rights a Boost

In June, the Indiana Supreme Court provided a fascinating exploration of the American theory of natural rights in ruling on a challenge to the state’s abortion ban. The court ultimately upheld the ban, but its analysis connected the state’s constitution to the 17th-century English philosopher John Locke in a way that could open the door to protecting a broad array of “natural rights” in Indiana and other states with similar constitutional guarantees. 

Our story here doesn’t start with Locke but an admirer of his from Virginia, George Mason. In the spring of 1776, as the colonies were about to declare independence, Mason and others hurried to draft a constitution for Virginia’s coming life without a monarch. That included a declaration of rights. George Mason wrote the first draft, and its first section included this: “That all Men are born equally free and independent, and have certain inherent natural Rights . . . among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.”  

The language was an immediate hit. Most famously, the Continental Congress adapted it to the Declaration of Independence. Newspapers published Mason’s draft throughout the colonies, and Section 1 rapidly showed up in constitutions up and down the new United States. As the years went by, other states adopted versions of this language too. Today, 31 states have some form of this provision in their constitutions.  

As Steve Calabresi and Sofia Vickery detailed in 2015, Locke not only influenced Mason, but some of Mason’s phrasing directly corresponds to Locke’s Second Treatise on Government. Following Locke, the reasoning behind the provision is that when people join civil society, they delegate some of their rights to the state but retain certain “inherent” or “inalienable” rights. If government overreaches beyond what the people have delegated, it violates this constitutional guarantee.  

Indiana is a state with what Calabresi and Vickery labeled a “Lockean Natural Rights Guarantee.” Its constitution’s key language is pithier than some, stating, “[all people] are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” Thus, the text indicates that Indianans have inalienable rights to life, liberty, and the pursuit of happiness; those aren’t the only inalienable rights (as suggested by the use of “certain”); and those rights are pretty wide-open anyway.  

In other words, is something you want to do an exercise of your “liberty” or a way to “pursue happiness”? Then you might have a right to it! Which, unfortunately, has been a problem for natural rights clauses over the years. In a similar fashion to state analogues to the Ninth Amendment, which my recent book explored, courts have often interpreted Lockean Guarantees to be simply rhetorical or to mean something completely other than what their text says. This is all horribly mistaken.  

For example, last year the Iowa Supreme Court reviewed a constitutional challenge to “right-to-farm” legislation immunizing certain farms from nuisance actions. In rejecting the challenge, the court gave a narrow interpretation of the state’s Lockean Guarantee. A concurrence went further and said the provision cannot “possibly be read literally” and is generally just “aspirational,” unlike the rest of the Iowa Bill of Rights’ “meat-and-potatoes provisions.”  

Other courts have read the Lockean Guarantees to have real protections but not the protections their text actually provides for. Wisconsin has one worded much like Iowa’s, but its supreme court has interpreted the provision to be an Equal Protection and Due Process Clause despite the fact that it contains neither the phrases “equal protection” nor “due process.” Furthermore, in almost all contexts, the court says the “clauses” should be interpreted just like the U.S. Supreme Court interprets the 14th Amendment.  

This is terrible and deeply antitextual. The language specifically and broadly protects “life, liberty and the pursuit of happiness.” Yet, courts deem that it simply protects what a different court happens to have said about different language in a different constitution. 

Which brings us back to Indiana. In its recent abortion decision, the court took the text of Indiana’s Lockean Guarantee seriously. It gave a full treatment of the provision’s background and Mason’s work and even adopted Calabresi and Vickery’s “Lockean” moniker — something only one court, Kansas in 2019, had done before.  

It also recognized its sweeping applications, writing, “It is impossible to catalogue Section 1’s implicit fundamental rights, but a few examples include having and raising children, pursuing a vocation that does not harm others, and patient self-determination.” Thus, in future cases, this clause could protect anything from a parent’s right to support their child’s gender identity to the right of entrepreneurs to earn a living. And most importantly, the court concluded the clause was judicially enforceable. 

Regarding the challenged abortion law — which banned abortion with very limited exceptions — reproductive rights advocates may disagree with the court’s conclusion that the plaintiffs’ facial challenge to the law should fail because of the state’s long history of regulating abortion and the interest of “prenatal life.” But the court’s recognition that its Lockean Guarantee has real teeth can protect other liberties going forward. It can also inspire other state courts to side with “life, liberty, and the pursuit of happiness” as more than empty rhetoric.  

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.