The discourse on the “born free and equal” clauses has long been embedded in the historical and legal fabric of the United States, stretching back to the Declaration of Independence and various state constitutions. As of today, 37 out of 50 state constitutions enshrine this clause, highlighting its pervasive influence. This foundational idea has been a touchpoint for critical legal arguments, particularly its cross-application to significant Supreme Court precedents involving same-sex marriage and eugenics laws. SCOTUSblog continues to explore these themes.
Beyond the symbolic, “born free and equal” raises constitutional questions about the incorporation of the Bill of Rights. Specifically, it questions whether all first eight amendments should unequivocally apply to states, a stance not fully embraced by the Supreme Court. The forthcoming case of Kian v. Florida brings this matter into sharper focus, with debates emerging around state defendants’ rights to a trial by a 12-person jury, as opposed to a six-person jury allowed by past precedents. This reflects a historic interpretation of the term “jury,” rooted in 19th-century dictionaries, which consistently defined it as comprising exactly 12 individuals.
Historically, the notion of a 12-person jury resonates with the federal Bill of Rights’ ratifiers, who likely endorsed such a composition for both criminal and civil cases. The precedent set in Williams v. Florida contradicts this legacy by endorsing smaller juries for state cases. In contrast, the doctrine of incorporation remains contentious, despite the 2010 ruling in McDonald v. City of Chicago advocating for the incorporation of the Second Amendment. This case linked gun rights with historical norms since 22 out of 37 states had equivalent protections when the 14th Amendment was adopted.
Similarly, incorporation could potentially extend to other amendments. As outlined in an analysis on SSRN, significant portions of the federal Bill of Rights find their analogues in over 22 state constitutions as of 1868. Therefore, a broad reading of historical precedent supports a complete incorporation approach through the 14th Amendment, as it extends fundamental protections against both federal and state infringement.
Justice Neil Gorsuch has also indicated support for revisiting the scope of the Seventh Amendment in civil cases. His statement in Thomas v. Humboldt County, California suggests that a 12-member jury requirement might be restored, correcting past oversights through a future Supreme Court review.
Ultimately, many legal practitioners advocate for aligning more closely with the historical understanding of these constitutional concepts, potentially transforming how certain rights are applied across the United States.