“Life,” “freedom,” and “happiness” are big words. It’s so large that it covers a lot more than just a special part of the human experience. A recent North Dakota Supreme Court decision on a challenge to North Dakota’s abortion ban illustrates how that linguistic reality is playing out for both originalist judges and progressive advocates.
last month, Access to Independent Health Services vs. Wrigleythree of North Dakota’s five judges concluded that the state’s ban was unconstitutional and vague. However, the state’s supermajority control was not enough to declare the law unconstitutional. Thus, the two negative votes carried the day.
In addition to rejecting the ambiguity argument, opponents considered an objection based on Article I, Section 1 of the state constitution, the “Rocky-style natural rights guarantee.” The guarantee of natural rights includes broad language that protects nearly every exercise of individual freedom. North Dakota protects, among other things, “certain unalienable rights, such as the enjoyment and defense of life and liberty; the acquisition, possession, and protection of property and reputation; (and) the pursuit and attainment of security and happiness.”
Based on originalism, opponents misunderstood some of these important words, which is not surprising given the way the case was argued. Across the country, judges and lawyers alike are trying to understand the distinction between the “fundamental rights” that some courts claim are protected by the Natural Rights Guarantee and the non-fundamental rights that are generally not protected. The problem is that such distinctions that once existed are no longer there. Most people just don’t realize it yet.
Important words of 1889
In the view of opponents, North Dakota’s natural rights protections cannot extend to as many individual liberties as this sweeping language suggests. That “represents a very broad legal check on legislative authority that is inconsistent with numerous prior precedents,” Justice Jerrod E. Tufte wrote in a dissenting opinion. If all “freedom” and “pursuit of happiness” were guaranteed by the constitution, all It will be protected. But as Mr. Tufte suggested, in 1889, when the Constitution was adopted, the government was doing all sorts of things to restrict individual freedom through police power.
Instead, the opposition went to the opposite extreme, specific Abortion, the very act in question, was protected in 1889. Unfortunately, opponents pointed out that the convention record gave no indication of what the delegates thought about Article 1, Section 1, let alone how it applied to abortion. The 1889 record was uninformative, and opponents simply pointed out that other state courts had enforced their own Rocky guarantees before 1889, citing major treatises on the subject, but without analyzing how those courts applied key words like “liberty” and “happiness.” Opponents also could not discuss conventions in other states where delegates would participate. did Please do not discuss Rockn’s warranty. However, (self-promotion alert) I recently compiled them into a handy summary. Additionally, opponents discussed how courts in other states have applied the Rocky guarantee to abortion restrictions in recent years, with mixed results, but that experience has little application to this case.
rational freedom
At least not as an excuse, opponents failed to engage North Dakota precedent outside of the abortion context, even though they argued that Rocky’s broader view of the guarantee was “inconsistent with much past case law.” One is from 1943. State v. Cromwell. There, the court declared the law requiring a license to work as a photographer unconstitutional. The report said that “freedom” included “the right to buy and sell, the right of citizens to freely choose the merchants they wish to patronize, the right to manufacture, the right to acquire property, the right to live in a community, the right to free and open markets, the right to freedom of speech, the right to self-defense against unlawful violence, and the opportunity to generally do what free men normally do.”
But wait, you might say, that’s an old case that happened at the very end of the world. Loknar During this era, federal and state courts often ruled that restrictions on economic freedom were unconstitutional. In fact, in 1978 the court made the following distinction: Cromwellsignificantly narrowing its use. However, tensions between the broad language of Rocky’s guarantee and the government’s requirement to regulate all areas of economic and personal life remain. of wrigley Dissent may have benefited Cromwellconcluded that that approach was closer to the original meaning of 1889 than later case law.
But wait again. It wasn’t Cromwell (and Lochner vs. New York itself) from a time when laissez-faire economics was essentially law? no! If you believe that, you are falling prey to modern myths that have long been debunked. Loknar And those days — myths that continue to distort our laws today.
like many people Lokner-decisions of the times, Cromwell He said that freedom and happiness symbolize the wide range of human conduct that the Constitution protects. but However, the state can still regulate it. Cromwell He even said Congress should be given “great discretion.” CromwellThe test for determining whether a law is overly restrictive is whether it is reasonable. Although not reasonable under modern rational basis tests, genuine Rationality: Based on actual facts, “its real purpose must be to protect public health, morals, or the general welfare.”
This is a very—dare I say it—reasonable way of reconciling the grand language of Article I, Section 1, with the reality of North Dakota’s acceptance of police power in 1889. Although freedoms are generally protected, governments can still regulate their actions when the facts and reasons justify them.
Under this approach, the question is not whether “abortion” was considered a specifically protected right in 1889. The question is whether, having regard to the facts and the public interest, the restriction of freedom is an unreasonable exercise of police power. Of course, some cases are easier than others. Licensing the profession of taking pictures of people sounds like a stupid idea, and I don’t think it would work. In the case of abortion, of course, the issue is more complex. On the one hand, it’s a woman’s right to her own body, and on the other, it’s a question of life, or potential life.
fundamental changes
To put the dissent in perspective, there is a reason why this view has not arisen in this case, or indeed in other recent abortion cases before the state Supreme Court. There was no political party that supported it. analysis in Cromwell It does not recognize the modern constitutional dichotomy between “fundamental rights” and “non-fundamental rights,” which was born out of footnote 4 of the 1938 U.S. Supreme Court decision. United States vs. Carolen Products. The modern approach is that if a right is “fundamental,” it will be subject to intense scrutiny and the government will almost always lose. If not, rational grounds apply and the government almost always wins. I can see why advocates stack their chips on “fundamental rights.” But that won’t work for long, especially if the judges hold pre-1938 originalist views.
The full impact on state constitutional litigation of the evolution of jurisprudence from carolen products Through today’s originalism, that’s too big a topic to do justice to here. (I talk about this a little bit in the book.) To summarize my opinion, state constitutions, and especially the Rockies Guarantees, were not built on the dichotomy of “fundamental rights.” text protect all Freedom includes not only a few select privacy-based rights that the Supreme Court anointed as fundamental in the years following a 1965 case that prohibited states from blocking married couples’ access to contraception. Griswold vs. Connecticut. Economic freedom is protected in the same way as personal freedom. However, strict monitoring cannot be carried out across the board. Instead, embrace true rationality.
make Loknar your friend
In other words, both judges and Advocates need to be reminded of the following examples: Cromwell And — yes — Loknar. Many modern defenders of fundamental rights have been arguing for decades. Loknar and economic freedom against the anti-canon, with increasingly circumstantial excuses for that distinction. That paradigm is over. The Constitution uses big words. It’s time to force them. There’s a reason.
Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice.
Recommended quote: Anthony Sanders “Freedom” is a big word, but that’s okaySᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (December 5, 2025), https://statecourtreport.org/our-work/analysis-opinion/liberty-big-word-and-thats-ok
