Natural Rights in State Courts

Sooner rather than later, anyone paying attention to constitutional cases in state courts is going to see the phrase “natural rights.” Though a staple of American jurisprudence since the founding, in recent years their tide has been rising. What do contemporary state courts mean when they refer to natural rights?

What’s so natural about a right?

Ask 10 philosophers and they’ll likely enlighten you with 11 different takes. Generally, though, the core understanding from the American Revolution through today is that natural rights are pre-political rights — rights that human beings possess simply because they are human. In contrast, post-political rights are those someone acquires via the formation of an ordered society, such as the right to vote or to a jury trial. Another name often used for the same idea as natural rights is “Lockean rights,” after John Locke’s writings on the state of nature and the social contract. Natural or Lockean rights do not impose a demand on anyone — including the state — other than that others not infringe on them.

Once you move into state constitutional law, caveat emptor! You’ll see terms like “inherent rights,” “inalienable rights” (or, with the alternative 18th century spelling, “unalienable rights”), “intrinsic rights,” and modern constitutional law’s darling, “fundamental rights.” Do these all mean the same thing? Sometimes, but not nearly always.

“Fundamental rights” can include some “state of nature rights” such as free speech, but also those post-political procedural rights like trial by jury or voting. “Inherent rights” and “inalienable rights” generally are synonymous with natural rights, but if you’re a litigator you should first check the peculiarities of a state’s own constitution and caselaw.

These terms aren’t just judicial gloss. Most state constitutions explicitly refer to “natural” or “inherent,” or similar, “rights.” Virginia’s, for example, declares that people “are by nature equally free and independent and have certain inherent rights,” whereas Vermont piles on the adjectives with “all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights.”

Finally, there is “natural law.” What’s the relationship between natural law and natural rights? That’s a question where those 10 philosophers will give you even more answers and is best left for another piece. The quick answer is that natural rights are often a part of theories of natural law. However, how natural law (whatever it is) intersects with constitutional law does not have to be figured out to raise a natural rights claim in court.

With that background, how are state courts using natural rights today?

Naturally Unenumerated

The U.S. Supreme Court’s overturning of Roe v. Wade in 2022 in Dobbs v. Jackson Women’s Health Organization has thrown much abortion litigation to the states. Given the “natural” and “inherent” language in state constitutions, it’s no surprise that this had led to a boomlet in natural rights state constitutionalism. Even before Dobbs, the Kansas Supreme Court in 2019 ruled that its “Lockean Natural Rights Guarantee” protected the “natural right” to bodily integrity and that obtaining an abortion was an aspect of that right. Both the majority opinion and the dissent dug deep into Locke, the Declaration of Independence, and much else in the natural rights oeuvre. An exploration of natural rights in modern state constitutionalism would be well to start there.

Since then, the same court has reaffirmed its 2019 decision and natural rights have featured in abortion cases in many other states, including Idaho, Indiana, Pennsylvania, and Utah. Some have resulted in victories for reproductive rights advocates, some for the state, but all take the idea of natural rights (or inherent rights or what have you) seriously, whether or not abortion itself is one of them.

These abortion cases all concern “unenumerated rights,” or rights not explicitly listed in a constitution. Instead, courts have read abortion rights into a general declaration of “natural” or “inherent” rights — or declined to do so, depending on which party’s arguments carried the day in a given case.

Perhaps the most litigated natural right of all is the unenumerated right of parents to direct the upbringing of their children, something the U.S. Supreme Court recognized over a century ago. State courts often — but, as some judges have argued, perhaps not often enough — recognize that in adjudicating issues of parental custody or visitation, their natural right vis-à-vis their child must be given strong weight and consideration.

Recent cases protecting other unenumerated natural rights — whether or not the court labels them “natural rights” — include a number my coworkers have litigated concerning the right to earn a living.

Natural rights and similar terminology should not be confused with substantive due process. Properly understood, substantive due process is simply how a due process of law clause — such as that in the 14th Amendment or in many state constitutions — protects substantive rights that aren’t otherwise enumerated. In practice that usually refers to natural rights, but not always. Most importantly, “natural rights” can be protected as unenumerated rights in many ways other than through a due process clause. We can rely on the above-quoted Lockean guarantees. We can also look to “Baby Ninth Amendments.” They protect rights “retained by the people,” which, as I argued in my book, means natural rights. Further, some states have clauses protecting “privileges or immunities,” a phrase which can refer to many interests, among them natural rights. When one of these clauses is protecting unenumerated rights, we shouldn’t call it “substantive due process.” (Yet this frustratingly happens all the time!)

Natural to Enumerate

It’s important to remember, though, that while most of the infinite number of natural rights are unenumerated, many actually are enumerated. We just don’t think of them as natural rights because we see the words on the page. But when people draft constitutions, often they are simply writing down a pre-political right.

The Pennsylvania Supreme Court recently recognized this for the “freedom of the press.” Virginia’s did the same for the free exercise of religion. Indeed, not only do states enumerate natural rights, some call them “natural rights” in that very enumeration. Indiana’s constitution, to name one of many, protects the “natural right to worship Almighty God.” Further, the right to be secure in one’s private property—something enumerated in various ways — is frequently recognized as a natural right.

• • •

For most lawyers, litigating natural rights can seem decidedly unnatural. In law school we’re taught to worry about the jots and tittles of things like contracts, bankruptcy codes, and the elements of statutorily defined crimes. But natural rights are no less based in law. Just because some constitutional provisions are written with broad terminology doesn’t mean they don’t do real work. Translating that sometimes-philosophical language into actual protections for the individual against the state takes judges and lawyers willing to take them seriously.

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

Suggested Citation: Anthony Sanders, Natural Rights in State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jul. 7, 2025), https://statecourtreport.org/our-work/analysis-opinion/natural-rights-state-courts