Born free and equal

This is my first article for SCOTUSblog, and I want to explain why I have chosen the header Born Free and Equal for my column. The phrase is derived from the Declaration of Independence, whose 250th anniversary we are celebrating this year. The heart of the Declaration of Independence, and of the American constitutional creed, comes from the statement that:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …

This idea of equality and freedom at birth has echoed throughout our history in many of our foundational documents. For example, the Massachusetts Constitution of 1780, which was written in part by John Adams, declares in Article 1 that:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

The Pennsylvania Constitution of 1776 states in Article I:

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

Indeed, six of the 14 states in 1791, when the federal Bill of Rights was ratified, contained similar language. New York State borrowed verbatim the language of the Declaration of Independence, while the constitutions of New Hampshire and Vermont borrowed verbatim the language of the Pennsylvania Constitution quoted above.

Strikingly, even the 1776 constitution of the slave state of Virginia provided:

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The “state of society” clause in the Virginia Declaration of Rights was inserted to protect slavery.

The fact that six states had born free and equal clauses in their declarations of rights in 1791 is striking because some states chose not to have declarations of rights at all. Connecticut and Rhode Island did not even write state constitutions or declarations of rights at the time of the framing, choosing instead to be governed by their colonial charters. But the four most prominent states were indubitably Massachusetts, New York, Pennsylvania, and Virginia, and they all endorsed the born free and equal creed.

The born free command, but not the born equal command, also appeared in dicta in an Article IV, privileges and immunities case, 1823’s Corfield v. Coryell, which many of the framers of the 14th Amendment would later say informed the original meaning of Section 1 of the 14th Amendment:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

The language above in bold face is Justice Bushrod Washington’s bowdlerized version of the founding era born free and equal clauses. The underlined clause “subject nevertheless to such restraints as the government may just prescribe for the general good of the whole” embodies an equality idea that regulation cannot be in the form of class legislation (laws that apply to particular “classes” of people). The underlined clause “and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign” endorses the “deeply rooted in American history and tradition” test of Washington v. Glucksberg and of Dobbs v. Jackson Women’s Health Organization. (Anyone seeking early texts protecting equality should read Akhil Reed Amar’s masterful 2025 book Born Equal: Remaking America’s Constitution, 1840–1920.)

The born free and equal creed next appears in the Seneca Falls Declaration of Sentiments of 1848, which, adapting the language of the Declaration of Independence in defense of sex equality, provides that:

We hold these truths to be self-evident; that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed.

In his famous Gettysburg Address, delivered on Nov. 19th, 1863, President Abraham Lincoln makes it clear that Black Americans are covered by the born free and equal American Creed:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

It should be remembered that in 1863 all the Latin American democracies had become presidential dictatorships, and the Revolutions of 1848 in Europe had all failed. The French Second Republic had been overthrown by the Emperor Napoleon III, Prussia was governed by Kaiser Wilhelm I, Russia was governed by the Czar Alexander II, and in England, even after the Reform Act of 1832, only one in seven men were eligible to vote. No wonder Lincoln ended the Gettysburg Address by warning that the North must win the Civil War so that “government of the people, by the people, for the people, shall not perish from the earth.”

Americans, including intellectuals, thus believed in the born free and equal creed at the founding from 1776 to 1791; and at Gettysburg, with Lincoln whose speech there immediately became a classic.

Sadly, many Americans, and most American intellectuals and presidents between 1881 and the Holocaust stopped believing in the born free and equal creed. Presidents Theodore Roosevelt and Woodrow Wilson, and Justice Oliver Wendell Holmes, were among the most prominent American intellectuals and leaders who loudly embraced Social Darwinism and eugenics. Social Darwinists denied that “all men and women were created equal” and taught instead that there were superior and inferior races of human beings engaged in an evolutionary competition governed by the “survival of the fittest.” The eugenics movement was an international movement that began in the United States and spread from there to Nazi Germany to compulsorily sterilize anyone who a social worker thought had a low IQ. It led in Germany to the Holocaust.

Thirty or more states adopted compulsory sterilization eugenics laws because of the triumph of Social Darwinism. The Supreme Court was far from immune here. In the infamous 1927 case of Buck v. Bell, Holmes wrote for an 8-1 court upholding compulsory sterilization of those who a social worker thought had a low IQ. This was distinguished away but not overruled by Skinner v. Oklahoma in 1942. (See also Aldous Huxley’s 1932 novel Brave New World, a dystopian tale describing a world with five different castes of people with different IQ’s).

Global horror and outrage over the Nazi Holocaust led President Harry Truman to re-dedicate the nation to the born free and equal creed when his ambassador to the United Nations, Eleanor Roosevelt, wrote the following in the 1948 Universal Declaration of Human Rights:

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Not everything in the 1948 Declaration is deeply rooted in American history and tradition, but the opening lines are a clear echo of our 250-year-old American Declaration of Independence and of our born free and equal creed. Our long national nightmare of eugenics and Social Darwinism gave way, and Americans (intellectuals included) returned to the born free and equal creed of the American founding and Reconstruction.

Another echo of the Declaration of Independence appears in Dr. Martin Luther King, Jr’s 1963 “I have a Dream” speech where he embraced the American born equal creed in the following famous passage:

I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

In sum, I submit that the American national creed – a creed which is deeply rooted in American history and tradition, as Dr. King said, – is that: “All human beings are born free and equal.” This marks the starting point from which I will post my comments on this site.

One last point deserves to be emphasized. The born free and equal language of the Declaration of Independence makes it clear that Americans are to be governed democratically by “the consent of the governed” and not by life-tenured judges inventing new rights that are not “deeply rooted in American history and tradition.” I therefore repudiate cases like 1905’s Lochner v. New York (inventing a right to liberty of contract and striking down a 60 hour a week limit on the work of bakers) and 1973’s Roe v. Wade (inventing a sweeping right to abortion and invalidating the abortion laws of all 50 states). I do, however, endorse Justice Stephen Field’s dissent in The Slaughter-House Cases calling for the invalidation of a state law which gave roughly 50 butchers a monopoly on working in New Orleans and put roughly 950 butchers out of work. For the same reasons, I think the Supreme Court erred in the 1955 case of Williamson v. Lee Optical Co., where it upheld a state law that made it illegal to be an optician violating “[t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise,” as articulated in Corfield v. Coryell.

In sum, I believe that the born free and equal creed infuses constitutional law but that it is constrained by: 1) the requirement that all rights be deeply rooted in American history and tradition; and 2) the requirement that all rights are “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” This column will explore, among other things, when and how the Supreme Court has lived up to this creed.

Note: The views expressed by Professor Calabresi do not reflect the views of Northwestern University Pritzker School of Law; Yale Law School; or the Federalist Society.