The latest installment in SCOTUSblog's seven-part series on the 'born free and equal' clauses turns to two contested areas of constitutional doctrine: incorporation and the size of criminal juries. The article, the sixth in the series, situates these clauses—which appear in the Declaration of Independence and in six of the twelve state constitutions in force when the federal Bill of Rights was adopted—as potential historical touchstones for modern Supreme Court debates.
The piece argues that the clauses' emphasis on inherent equality and liberty could inform how the Court understands the scope of rights incorporated against the states under the Fourteenth Amendment. It also draws a specific link to the requirement of a 12-person jury, a subject of recent litigation and scholarly attention. The author suggests that the clauses' original meaning might reinforce the view that the 12-person jury is a fundamental right, though the article is careful to present this as an interpretive possibility rather than a settled conclusion.
Because this is an introductory explainer, it does not offer a full legal analysis or predict outcomes. Its value lies in mapping the historical terrain: the clauses' presence in early state constitutions, their connection to the Declaration's language, and their potential relevance to incorporation and jury size. The series as a whole aims to give readers a foundation for understanding how these rarely cited clauses might surface in future Supreme Court arguments.