What the Framers Really Thought About Life, Liberty, and the Pursuit of Happiness

Pop quiz: What constitution is the following sentence from?

“That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”

A casual history student might reply: “It’s from the Declaration of Independence, not the Constitution.” But a more advanced student would know it’s from a different declaration in a different constitution — the Vermont Declaration of Rights, which is Chapter I of that state’s constitution. Similar language appears in the constitutions of two-thirds of the states. These provisions are sometimes called “Lockean Natural Rights Guarantees,” referring to the “unalienable rights” (outside of Vermont usually spelled “inalienable”) that people enjoy when they enter John Locke’s idealized social contract.

State constitutions have showcased these provisions since 1776 and over the centuries courts have applied them in all kinds of ways — including to declare slavery unconstitutional, to protect the right to earn a living, and to defend private property. There’s been a renewed focus on “Lockean Guarantees” among some lawyers and judges over the last few years as abortion rights litigation has shifted to the states. Courts have interpreted them as bulwarks against all kinds of state power restricting life, liberty, property, and the pursuit of happiness.

That’s just the courts, though. I’ve also wondered: What did the drafters of these provisions think? Why decades or centuries removed from 1776 did convention delegates repeatedly place these words in the fundamental laws of so many states?

I’m not an “original intentions originalist” who thinks the specific intentions of constitutional drafters control later applications of text. (I’m more of a “public meaning originalist.”) But as with any constitutional provision, what the drafters said about the text is at least relevant to how it was understood at the time and its intended function.

With that in mind, I combed through the records of over 150 constitutional conventions that have taken place over the course of 200 years, looking at how the various framers crafted these provisions and what they had to say about them. I found these debates both inspiring and surprising.

First and foremost, delegates took Lockean Guarantees extremely seriously. Some conventions spent hours debating whether to include or exclude a single word. For example, those in attendance at the 1857 Iowa convention vociferously argued about whether to say all men are “free and independent” or “free and equal.” The issue was seen to be so important that it was handed off to a select committee. And at the 1868 South Carolina convention, the delegates had a similar disagreement over whether to say men are “born free” because, after all, babies are hardly “free” but dependent on their parents.

This seriousness underscores the fact that delegates thought Lockean Guarantees were judicially enforceable, not mere “glittering generalities.” For the most part, delegates thought they were “real” constitutional protections, like free speech guarantees or freedoms from unreasonable search and seizure.

Not only did delegates care about the exact words; they also considered broad language such as “the pursuit of happiness” to cover other rights. Thus, argued some delegates, they didn’t need to include other more specific rights because the broad language already protected them.

Take the 1889 Idaho convention, where a delegate suggested that they didn’t need specific protections against double jeopardy and self-incrimination because these were already covered by the phrase “certain inalienable rights, among which are enjoying and defending life and liberty.” (His colleagues adopted those specific protections anyway, for greater caution.) And in 1857, a Minnesota delegate argued that similar language protected the right to a remedy.

Many delegates saw a tie between Lockean Guarantees and the right to earn a living. Not only do most versions mention property, but some explicitly protect individuals’ right to “gains of their own industry” or “the fruits of their own labor” alongside “the pursuit of happiness.” The 1950 Hawaii convention had a quite practical view on this. A committee considering the Bill of Rights stated it should include “the right of acquiring and possessing property” because “that not only helps to increase the individual’s happiness, but tends to make a more stable state which is the best assurance of keeping the citizens free from ‘political oppression.’”

Some framers also believed that Lockean Guarantees were incompatible with slavery and white supremacy. It’s often said that the stirring words of the Declaration of Independence were hypocritical and at best aspirational. Its primary author, of course, had a notoriously personal relationship with slavery. But when similar words arose in state constitutional debates, they invariably were championed on the side of freedom and equality — often with explicit invocations of the founding document. In response, both slavery supporters and segregationists realized phrases such as “all men are created equal” cannot be taken seriously and coexist with racial inequality. To give one of many examples, following a period of violent conflict over the legality of slavery in the proposed state of Kansas known as “Bleeding Kansas,” a delegate at the 1859 convention worried that the draft Lockean Guarantee implied equal rights among the races. He moved to append a clause explicitly excluding people of color from the provision’s protection. The motion failed.

And in the late 19th century, amid a push for sex equality and women’s suffrage, there were efforts to change “men” to “persons.” These efforts were met with explanations that “men” was used in a non-gender specific way. No one was willing to argue that women didn’t have these natural rights — though the right to vote was another matter.

An article summarizing my findings, Social Contracts: The State Convention Drafting History of the Lockean Natural Rights Guarantees, will be published as part of a symposium from the University of Missouri-Kansas City Law Review called Rethinking State Constitutional Law. You can read a draft here. I hope not just scholars but also practitioners and judges find my article useful. State courts often turn to convention records to explicate constitutional meaning. If nothing else, the debates I uncovered — almost all of which are available online — may assist those fighting for our natural and inalienable rights.

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, What the Framers Really Thought About Life, Liberty, and the Pursuit of Happiness, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 14, 2024), https://statecourtreport.org/our-work/analysis-opinion/what-framers-really-thought-about-life-liberty-and-pursuit-happiness.