While the U.S. Supreme Court has declined to issue advisory rulings, some state courts embrace this power.
I have just returned from the annual confab of the Midwest Political Science Association. The MPSA is not my favorite haunt (the folks there tend to like putting the science into political science), but I was delighted to be part of a panel discussion of the important new book by Emily Zackin, Looking for Rights in All the Wrong Places.
A central theme of Looking for Rights is that there is a robust positive rights tradition in the United States after all. The conventional wisdom is that American constitutionalism reflects a classical liberal commitment to negative rights – rights against government interference. Positive rights (or socioeconomic rights or third-generation rights) that emphasize government duties to citizens have been common in constitutions across the globe written since World War II (think South Africa’s constitutional right to housing), but they have been thought to be largely absent from the American constitutional landscape.
The book contends that we have been looking “in the wrong place” for such rights provisions – namely, in the text of the U.S. Constitution, which is geared toward negative rights. State constitutions, however, have tended to include these sorts of provisions, what the South African Parliament has described as rights that “place a duty on the government to address the problems people experience” in the world. A study of positive rights might not be the cup of tea of readers of the Liberty Law Blog, but it is worth considering such challenges to the common assumption that the political tradition of the United States has been uniformly Lockean.
But let me suggest two other notable contributions of the book that don’t require the reader to be interested in positive rights. First, the book calls our attention the importance of state constitutions to American governance. Much of our political discourse and academic study focuses on the U.S. Constitution and its interpretation. The American state constitutions are often dismissed as parochial, superficial, and uninteresting. But from a political perspective, the state constitutions are often where the action is.
Throughout American history, activists and interests have looked to state constitutions to advance their political goals. For the first century of the American experience, states and localities were the primary sites of government, so the state constitutions that channeled and constrained those political bodies were crucial. The growth of the federal government in the twentieth century may have overshadowed the states, but state constitutions remain important sources of constitutional innovation. One doesn’t have to explain the value of state constitutional politics to Ward Connerly’s American Civil Rights Institute or Arizona’s Goldwater Institute or the suddenly successful Drug Policy Alliance or Lambda Legal. The book provides valuable insights into how an array of interests have made use of state constitutions over time.
Second, the book emphasizes some particular features of constitutional politics that are easily overlooked if we only focus on the U.S. Constitution. The federal constitution is hard to amend, and as a consequence much of the constitutional politics at the national level focuses on the interpretation of the constitutional text and the development of constitutional law seeking to elaborate and apply federal constitutional requirements. State constitutions are uniformly easier to amend, and as a result important aspects of state constitutional politics revolves around drafting and adopting new constitutional text. State constitutional politics isn’t limited to trying convince judges to pour new doctrinal wine into old textual bottles. Amendment politics is a crucial instrument for making state constitutions into living documents.
There have also been more diverse paths to amending state constitutions. The U.S. Constitution primarily runs the path of formal constitutional change through Congress. Incumbent politicians have to be convinced that amending the text would be a good idea, and they are not always an audience easily moved by suggestions that government power needs to be constrained in new ways. There are more workarounds in state constitutions. Through much of American history, constitutional conventions have been an important vehicle for changing constitutions, and the special elections for conventions have created new opportunities for gaining access to the levers of power. More recently, the power of initiatives and referenda have facilitated direct citizen engagement with the process of constitutional change. When incumbent politicians obstruct the desire for constitutional reform, the states have provided outlets for making reform happen despite that resistance.
In part because of this distinctive constitutional reform process, state constitutions have also been used somewhat differently than the federal constitution. The federal constitution primarily “turns courts on” by creating limits on government power and authorizing courts to interpret and enforce those limits. State constitutions have also been used to “turn courts off” by overturning judicial rulings and specifically empowering legislatures to do things that courts have resisted, and state constitutions have been used to directly instruct legislators on political priorities and to create new rules and institutions for getting things done. Constitutions are more flexible instruments by which citizens can control politicians than our federal experience might suggest.
State constitutional politics has not always been pretty and the results have not always been good, but state constitutional politics should not be ignored. For those frustrated by how political power has been exercised, state constitutions have provided an outlet for innovation and reform.
(In the spirit of full disclosure, I should note that I advised Zackin’s dissertation. But the book turned out to be pretty good despite that.)