Constitutional Politics in the States

Zackin book cover

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.)

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is the author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas, 1999) and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007). He is the co-author (with Howard Gillman and Mark Graber) of American Constitutionalism (Oxford, 2013).

About the Author

Comments

  1. gabe says

    Prof. Whittington:

    1) do you support the “positive rights” slant of certain State Constitutions?
    They are not without problems. As an example, my home state’s constitutioon has a clause that states that providing an education to citizens is the primary duty of the state (or words to that effect). This is, to my mind, a dubious proposition at best. However, the people have so spoken – well they did so over a century ago – and it is thus part of our constituent law. The problem arises when judges in this state then overrule Legislative determinations as to what constitutes “primacy” (of funding, of course) and then declare that the Legislature budget allocations are unconstitutional and must be proportionately altered to reflect the Judiciary’s notion of what is proper.
    Now then, let us suppose the a State decided to incorporate Roosevelt’s Four Freedoms into its Constitution, can you imagine what sort of mischief our Black robed friends would engage in?
    2) To my mind, there was a distinct reason why the US Constitution was limited to “negative” liberties. As the central government was intended to be limited in scope and effect, it was thought best to curtail any grand plans and intrusions on liberty by the central government. The States were intended to provide for the people via its “police power” to set moral standards, etc. However, I do not believe that at the time there was any support for providing for such positive rights as education, etc etc. These were primarily the responsibility of the local communities and were supported as such. Are there specific examples in the early State constitutions that show widespread support for these positive rights? (My own state constitution was not ratified until 1889 and may be said to have come under the influence of the burgeoning Progressive sentiment).
    3) If my failing memory has not deserted me, I recall some State / District Court decisions of recent years, in which the Judges decided that there was, for lack of a better term, a “property right”, a constitutional right to welfare payments / support.
    So who is to blame for this silliness?
    Any thoughts?

    take care
    gabe
    BTW. Reviews of your book on Judicial Review look good – guess I’ll have to get it.

  2. says

    Mention should be made here of John Dinan’s book, The American State Constitutional Tradition: http://www.amazon.com/American-State-Constitutional-Tradition/dp/0700616896/ref=la_B001HQ0ATW_1_1?s=books&ie=UTF8&qid=1396870600&sr=1-1

    P.S., the federal constitution IS too hard to amend. Consistent originalists need to push for a revision of article V, reducing the required votes to 60% of Congress, and 66% of the state legislatures. Call it the “responsibility amendment” because it will force Americans to realize the development of their Constitution is in their hands, and should not be in the hands of judge-rulers.

    • gabe says

      Carl:

      I share your sentiment about Art V – BUT we still have to get it through Congress and there is not much reason to hope that the congress would be any more receptive to this suggestion than it has been to the State initiated convention / amendment process.
      We are doomed!!!

    • Kevin R. Hardwick says

      Strong second here on John Dinan’s excellent scholarship on the state constitutions. Well worth reading.

  3. Kevin R. Hardwick says

    A question: is the right to trial by jury an example of a positive right? It seems to me that positive rights represent state sanction employed to secure a civil good for one party at the expense of restrictions on another party. Thus, my right to a jury trial entails the state restricting the liberty of others by requiring them to serve as jurors. I have however never seen the right to jury trials discussed as a positive right. Usually analysis focuses on the way in which jury’s can serve to limit governmental power, a species of negative right.

    • gabe says

      Interesting question.
      Perhaps it comes down to the level of mischief which is possible as a result of the implementation of a “positive right.” Certainly jury trial, in theory and GENERAL practice, can not be said to cause much mischief (OJ’s trial notwithstanding) in comparison to the positive right to welfare payments or compulsory union dues.

      take care
      gabe

      BTW: So I bought whittington’s book – is it worth it to read Dinan’s as well? Is it a broad review of State constitutions with background rationale, etc?

  4. Scott Amorian says

    If I own mineral rights to a piece of land, I can grant those rights to someone else. If I do not own the rights, I cannot grant them.

    The American sovereign, “we the people,” grant some of our sovereign rights to government so it can perform its prescribed duties. The granting of those rights is implied in authorizing government to exercise certain prescribed duties of sovereignty; the duties of making laws, treaties, etc. A constitution is a writing of a sovereign defining a government, not a writing of someone else defining a sovereign. That would make the someone else the real sovereign. The sovereign cannot grant rights of sovereignty to the sovereign, because that would be like me granting mineral rights to myself when I already own them.

    The “right” to a jury trial can be a legal right or a constitutional right, of course. The sovereign’s legislature is defined by the sovereign’s constitution and dutied to act on behalf of the sovereign to create laws. To the degree that the legislators are loyal to the sovereign and only the sovereign, the laws represent the will of the sovereign, and are just. Granting of rights by the sovereign’s loyal legislature is the same as the granting of rights by the actual sovereign. Rights granted through the legislature through just laws are positive rights. Restrictions on behavior cannot be considered rights with respect to the individual, because no permission is being given to the individual.

    A constitutional obligation to accept a choice of a jury trial can be placed on the government. When the right to a jury trial is defined in the constitution, it is a definition of the government, and a limit on its permitted actions, and a granting of a right to run a jury trial system.

    The right to a jury trial is a positive right with respect to empowering government to hold jury trials, assuming that government and not some other party holds the trial. It is a positive right in granting citizens who are in a state of subjection to the sovereign’s justice system an ability to choose between forms of trial.

    I do not buy into the whole negative right thing. How can one grant negative mineral rights? There is negativity is implied in the right to grant. You cannot grant rights to my minerals because you do not own them, I do. My right is also your negation.

    Negation is implied in a right, but is not the whole of the right. There are no negative rights per se. There are only the negative aspects of rights that in part define those rights.

    Or at least, those are one software engineer’s thoughts on the matter.

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