Two-Clause State Constitutional Provisions

Prof. Eugene Volokh, UCLA Law School


              The following roughly contemporaneous constitutional provisions contain -- like the Second Amendment -- a purpose clause and a directory clause.  The relevant portions of each provision are set in bold.

              Free Speech/Press:  The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject -- being responsible for the abuse of that liberty.  Arkansas (1836), art. II, § 7; Illinois (1818), art. VIII, § 22 (but comma instead of dash); Indiana (1816), art. I, § 9 (comma instead of dash); Kentucky (1792), art. XII, § 7 (same, comma instead of semicolon); Louisiana (1812), art. VI, § 21 (same); Missouri (1820), art. XIII, § 16 (same, but with "that" before "every"); Pennsylvania (1790), art. IX, § 7 (same as in Illinois); Tennessee (1796), art. XI, § 19 (same as in Illinois).

              Free Press:  The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.  Massachusetts (1780), art. XVI; New Hampshire (1784), pt. I, art. XXII ("The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved").

              The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty . . . .  Rhode Island (1842), art. I, § 20.

              Free Speech and Debate in the Legislature:  The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.  Massachusetts (1780), art. XXI; New Hampshire (1784), pt. I, art. XXX; Vermont (1786), chap. I, art. XVI (with "either house of" omitted).

              Jury of the Vicinity:  In criminal prosecutions, the trial of the facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .  New Hampshire (1784), pt. I, art. XVII.

              Ex Post Facto:  That retrospective laws, punishing acts committed before the existence of such laws, and by them only declared penal or criminal, are oppressive, unjust, and incompatible with liberty; wherefore, no ex post facto law shall ever be made.  Florida (1838), art. I, § 18; Maryland (1776), art. XV; North Carolina (1776), art. XXIV; Tennessee (1796), art. XI, § 11 (no comma after "wherefore").

              Retrospective laws are highly injurious, oppressive and unjust.  No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences.  New Hampshire (1784), pt. I, art. XXIII.

              Hereditary Offices:  No office or place whatsoever in government, shall be hereditary -- the abilities and integrity requisite in all, not being transmissible to posterity or relations.  New Hampshire (1784), pt. I, art. IX.

              Pensions:  Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time.  New Hampshire (1784), pt. I, art. XXXVI.

              Multiple Offices:  That the legislative department of this government may, as much as possible, be preserved from all suspicion of corruption, none of the Judges of the Supreme or other Courts, Sheriffs, or any other person or persons possessed of any post of profit under the government, other than Justices of the Peace, shall be entitled to a seat in the Assembly . . . .  New Jersey (1776), art. XX.

              Proportional Punishments:  All penalties shall be proportioned to the nature of the offence, the true design of all punishment being to reform, not to exterminate, mankind.  Illinois (1818), art. VIII, § 14.

              Frequent Elections:  That the right in the people to participate in the Legislature is the best security of liberty, and the foundation of all free government; for this purpose, elections ought to be free and frequent, and every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage.  Maryland (1776), art. V.

              Search and Seizure:  That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants -- to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special -- are illegal, and ought not to be granted.  Maryland (1776), art. XXIII.

              Petition:  Although disobedience to laws by a part of the people, upon suggestions of impolicy or injustice in them, tends by immediate effect and the influence of example, not only to endanger the public welfare and safety, but also, in governments of a republican form, contravenes the social principles of such governments founded on common consent for common good, yet the citizens have a right, in an orderly manner, to meet together, and to apply to persons intrusted with the powers of government for redress of grievances or other proper purposes, by petition, remonstrance, or address.  Delaware (1792), art. I, § 16.

              Judicial Tenure:  That the independency and uprightness of Judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people; wherefore the Chancellor and Judges ought to hold commissions during good behaviour; and the said Chancellor and Judges shall be removed for misbehvaiour, on conviction in a court of law, and may be remooved by the Governor, upon the address of the General Assembly; Provided, That two-thirds of all the members of each House concur in such address.  Maryland (1776), art. XXX.

              It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.  It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.  It is therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.  Massachusetts (1780), Bill of Rights art. XXIX; New Hampshire (1784), pt. I, art. XXXV (with "supreme (or superior)" replacing "supreme").

              Rotation in Office:  That a long continuance, in the first executive departments of power or trust, is dangerous to liberty; a rotation, therefore, in those departments, is one of the best securities of permanent freedom.  Maryland (1776), art. XXXI.

              Religious Freedom:  That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religiou spersuasion or profession, or for his religious practice . . . .  Maryland (1776), art. XXXIII.

              That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience . . . .  Virginia (1776), Bill of Rights, § 16.

              And whereas we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambitiion of weak and wicked priests and princes have scourged mankind, this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind; Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.  New York (1777), art. XXXVIII.

              Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person's voluntary contract; nor enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person's religious belief; and that every person shall be free to worship God according to the dictates of such person's conscience, and to profess and by argument to maintain such person's opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.  Rhode Island (1842), art. I, § 3.

              Monopolies:  That monopolies are odious, contrary to the spirit of a free government, and the principles of commerce; and ought not to be suffered.  Maryland (1776), art. XXXIX.

              Schools:  [Providing for religious freedom and banning religious preferences.] . . .  But religion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience.  Ohio (1802), art. VIII, § 3.