INDIVIDUAL RIGHTS UNDER STATE CONSTITUTIONS IN 2018: WHAT RIGHTS ARE DEEPLY ROOTED IN A MODERN-DAY CONSENSUS OF THE STATES?

For the last forty years, Supreme Court Justices, Presidents, Senators, and constitutional law scholars have fiercely debated the question of whether to follow the original public meaning of the text of the Constitution and of the Fourteenth Amendment, or whether to embrace living constitutionalism and, by extension, more modern rights, like the right to privacy. Here, Calabresi et al. propose to put aside normative theorizing for the moment and instead to mostly present some data and empirical proof that they think suggest that the two sides of this debate are not really all that far apart. They seek to prove this by comparing the rights that exist in today's state constitutions in 2018 with the rights that existed in state constitutions in 1868, when the Fourteenth Amendment was ratified 150 years ago this year.