State Constitutional Rights After Roe - Example
- The Water Cooler
- 10 Replies
Not for the partisanly stupid. Hickory and ilk drive on.
Kentucky is on its 4th Constitution. First in 1792. 4th in 1891.
Section 1 currently says:
”All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.“
Section 2 says: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”
Section 5 says: “No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”
Its a combomash of the Declaration of Independence and US Constitution/Bill of Rights, but still different. Some more. Some less. Multiple other statutory provisions made their way into the Constitution in Kentucky, presumably to strengthen them. The mash-up continued even to the modern era. Example - Kentucky took administrative regulations passed by the EEOC under the Americans With Disabilities Act and placed them into the statutory language of the Kentucky Civil Rights Act, giving them the power of legislative enactment over the weaker (see last week’s EPA decision) administrative regulations.
Are the words used to create state protections of life, liberty, safety and happiness enough to create protections greater than the US Constitution created? We will see what the Kentucky courts say soon. The trial court judge hearing the case in Louisville issued an injunction delaying enforcement of Kentucky’s trigger law long enough to give the pro/con parties more time to present argument. THAT injunction was upheld by the Court of Appeals.
When I was a new lawyer, one of Kentucky’s esteemed Supreme Court judges (wildly liberal) publicly lamented the circumstance that so few Kentucky lawyers used the state Constitution. Looks like his wish is coming true. A whole new era of state law has awakened across the US. I will be a spectator. Younger lawyers will hopefully set aside their personal feelings and act like lawyers and make it a beneficial era.
First up - abortion rights. As they say at USC, now a Big Tenor, “Fight On.”
Kentucky is on its 4th Constitution. First in 1792. 4th in 1891.
Section 1 currently says:
”All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.“
Section 2 says: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”
Section 5 says: “No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”
Its a combomash of the Declaration of Independence and US Constitution/Bill of Rights, but still different. Some more. Some less. Multiple other statutory provisions made their way into the Constitution in Kentucky, presumably to strengthen them. The mash-up continued even to the modern era. Example - Kentucky took administrative regulations passed by the EEOC under the Americans With Disabilities Act and placed them into the statutory language of the Kentucky Civil Rights Act, giving them the power of legislative enactment over the weaker (see last week’s EPA decision) administrative regulations.
Are the words used to create state protections of life, liberty, safety and happiness enough to create protections greater than the US Constitution created? We will see what the Kentucky courts say soon. The trial court judge hearing the case in Louisville issued an injunction delaying enforcement of Kentucky’s trigger law long enough to give the pro/con parties more time to present argument. THAT injunction was upheld by the Court of Appeals.
When I was a new lawyer, one of Kentucky’s esteemed Supreme Court judges (wildly liberal) publicly lamented the circumstance that so few Kentucky lawyers used the state Constitution. Looks like his wish is coming true. A whole new era of state law has awakened across the US. I will be a spectator. Younger lawyers will hopefully set aside their personal feelings and act like lawyers and make it a beneficial era.
First up - abortion rights. As they say at USC, now a Big Tenor, “Fight On.”