I commend the Section of Individual Rights and Responsibilities and Human Rights magazine for its focus in this issue on state constitutional and other state legal protections for rights. In our federal system, state constitutions and laws serve, together with federal protections, to provide a “double source” of protections for individual liberties. But state constitutions continue to be “low-visibility” constitutions, overshadowed by the more-familiar federal constitution.
One of the persons most responsible for the modern recognition of state constitutions as an important and legitimate source of human rights is former professor and Oregon Supreme Court Justice Hans Linde. Coincidentally, on the same day I first saw the draft of Ron Collins’ tribute for this issue, I had dinner with Justice Linde. Ron’s birthday salute speaks for all of us, and I certainly count myself one, who have been helped and encouraged in our careers by Justice Linde.
American constitutionalism is often described as protecting only negative rights and not “second-generation,” positive social and economic rights. That view is, of course, inaccurate and is a product of the American preoccupation with the federal constitution to the excusion of our 50 state constitutions. Karla Walter’s article in this issue highlights the areas where less-than-adequate federal protection for workers’ rights is, in some instances, supplemented by state constitutional and statutory protections. Who knew, for example, that New York’s constitution guaranteed “prevailing wage” pay for workers on public projects?
In fact, a number of state constitutions provide positive protections for a variety of workers’ rights as a result of the political organizing and advocacy of workers themselves over the years. See Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013).
This actually should not be surprising because such matters are within the residual, plenary power retained by the states at the founding of the federal government. Further, such protections reflect the important use of state constitutions to entrench what would otherwise be legislative policies in state constitutions to bypass reluctant legislatures and to remove certain matters from legislative and even judicial discretion. A good example is New Jersey’s 2013 state constitutional amendment to raise and index the minimum wage after a gubernatorial veto of similar ordinary legislation. In 1947 New Jersey had constitutionalized the right to collective bargaining.
There are many other examples of positive social and economic rights, unknown to federal constitutional law, in state constitutions. Education rights, as analyzed by Trish Brennan-Gac, and mandates to health care, public assistance, and environmental quality can be found in state constitutions. Efforts at judicial and political enforcement of such rights are continuing. In 2013 the Pennsylvania Supreme Court struck down a state law overriding local zoning for fracking, based on the 1970 state constitutional environmental protection amendment.
One of the most important issues in state constitutional law, in contrast to federal constitutional law, has been the movement for recognition of the right of same-sex couples to marry. Prior to the recent U.S. Supreme Court decisions striking down the Defense of Marriage Act and letting stand the lower-court invalidation of California’s Proposition 8, all of the action was in the states. Ari Ezra Waldman’s article illustrates the interactive nature of federal and state constitutional rights in this area. The good news, for those of us who believe in and support the recognition of such rights, is the state judicial and legislative victories for such couples. The bad news, however, also illustrates a central feature of state constitutionalism: the relative ease by which state constitutions may be amended, as many states such as California have done, to deny rights such as same-sex marriage. Such amendments remain valid, for the time being, despite the Supreme Court’s nondecision on the California case, the effect of which was limited to that one state.
As Jonathan Marshfield’s article points out, however, the relative ease of amendment can be a two-way street. States may legitimately recognize rights that are more protective than the national minimum standard of federal constitutional rights, through both judicial interpretation and textual amendment. State equal rights amendments, protections for property against eminent domain for economic development, open records and meetings requirements, and many other expansive rights protections signal the upside of state constitutional “amendomania.” Advocacy groups for rights need to expand their activities beyond courtrooms and catch up with negative groups such as those opposing same-sex marriage.
The article by Rebekah Wilce and Lisa Graves is probably correct that most Americans have not heard of the American Legislative Exchange Council (ALEC), a conservative lobbying group that suggests a wide variety of “model” laws to be adopted by the states. Most progressive legal advocates would look to federal constitutional arguments in response to such draconian laws such as the requirement of a photo ID for qualified, registered voters to cast their votes even in federal elections. The federal constitutional claim, however, has already been lost. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008). This triggered a round of what I have called “second looks” at the question under state constitutions. In Pennsylvania, for example, the state photo voter ID law was enjoined prior to the 2012 presidential election. Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012). After a remand for full fact finding, the lower court issued an exhaustive decision repudiating the voter ID law and its rationale as a violation of the Pennsylvania Constitution, which has guaranteed “free and equal” elections since 1776. After the state’s motion for reconsideration was denied, it decided not to appeal the decision. I helped draft an amicus curiae brief in this case, for the AFL-CIO, which proved to be influential. That brief might serve as a model for the construction of a state-specific argument under state constitutions in a variety of different kinds of cases. Such state constitutional arguments have become much more important after Shelby County v. Holder eviscerated the federal Voting Rights Act, as described by William Yeomans. Many of the draconian state laws enacted after Shelby County will have to be challenged, as in Pennsylvania, under state constitutions.
After the famous 1973 Roe v. Wade decision by the U.S. Supreme Court, most rights advocates looked to the federal courts to protect these important reproductive rights. However, as Angela Hooton and Aram Schvey point out, even the Supreme Court has, in the post-Roe world, permitted erosion of women’s right to choose. They outline a number of state laws (including denial of medical assistance funding) that seriously interfere with, and stand in the way of, access to safe abortion. Many of these laws now pass federal muster. Again, this is an area where the “double source” of protection, which permits state-by-state “second looks” at the state constitutionality of these abortion-deterring statutes, must be seriously considered. Many state courts, relying on their state constitutions, have struck down funding restrictions, parental consent, and notification requirements, as well as other restrictions. This state-by-state approach is not a satisfactory substitute for nationwide protection from the Supreme Court, but, when that fails, the state-law approach can protect many of our clients.
When advocates consider state-law approaches as alternatives to federal constitutional claims, it is important to consider state statutory, administrative, and even common-law claims in addition to those based on state constitutions. Marsha Chien’s article on state antidiscrimination laws drives this point home. Invoking the famous Brandeisian “states as laboratories” metaphor, she surveys the wide variety of state statutes in this area of the law. It is always important to investigate these kinds of “subconstitutional” remedies in addition to state constitutional approaches.
Many of the federal constitutional doctrines that jump almost automatically to our minds may not apply to state-law claims. For example, the “state action doctrine” has been rejected, at least in its rigid federal form, by some state courts asked to protect free speech and association rights on private property like private university campuses and shopping malls that are open to the public. Further, some state courts have recognized that their constitutions contain textual provisions on privacy, treatment of the incarcerated, access to judicial remedies, and many other protections not found in the federal Constitution.
In our federal system, state constitutions and laws provide important protections for human rights, sometimes in lieu of, and sometimes beyond, federal constitutional rights. Every lawyer, judge, and citizen should pay more attention to their state constitutions. They make great bedtime reading!