Balkinization: The United States’ Rights Tradition and State Constitutions

The United States’ Rights Tradition and State Constitutions

Guest Blogger

For the Constitution in 2020 conference on The Future of Equality.

Emily Zackin

America’s constitutional law, its rights tradition in particular, is often said to reflect Americans’ fear of an over-active and overbearing state. Thus, America’s Constitutional rights are widely thought to restrain the state in order to protect citizens from the state’s power and potential for tyranny. Constitutions of other nations all over the world also contain these limits on government, but they include a different kind of right as well. These rights (sometimes called positive rights) obligate government to intervene in social and economic life, promoting equality rather than simply procedural fairness. They offer protection not from government itself, but from market capitalism and its consequences. The Belgian Constitution, for instance, declares that everyone has a right to a free education, and the South African Constitution includes the right to medical care. The text of the U.S. Constitution contains no such explicit guarantees, and the Supreme Court has consistently declined to interpret the Constitution to include them. Many have concluded that America simply lacks this other kind of constitutional right, and that Americans have been willing to commit to welfarist policies only at the level of statutory law.

The problem with this conventional account of American constitutional rights is that it takes the history of the federal Constitution and the federal Supreme Court to be the only one worth considering. The great majority of commentators on American rights have leapt effortlessly, and indeed unconsciously, from the assertion that the federal Constitution lacks (judicially recognized) positive rights to the conclusion that the United States lacks positive rights, at least at the constitutional level. It is this error that I endeavor to correct through my study of state constitutional movements.

In my current book project, and in a related article in Studies in American Political Development, I demonstrate that American history is, in fact, replete with successful campaigns to create constitutional rights to protective and redistributive governance, but that these rights appear in U.S. state constitutions. Throughout the nineteenth and twentieth centuries, organized movements used state constitutions in order to force government to protect people from market capitalism and its attendant risks. As a consequence, these documents include many explicit rights to protective and interventionist government. Not only do state constitutions contain such textual mandates, but many of their champions explicitly argued that intrusive government and the risks government posed to private property and individual liberty were not the most salient or urgent threats to the well-being of every citizen. These rights movements insisted that “freedom” from government intervention and protections for private property would mean little, especially to particularly vulnerable people, unless government also provided protection from more immediate, non-governmental dangers—like economic inequality, dangerous working conditions, and environmental catastrophe.

These rights movements successfully created the kind of constitutional rights that Americans are not supposed to have. They also used state constitutions for reasons that most theories of constitutional politics have missed. The classic explanation for the emergence of constitutional rights holds that people in power create these rights to entrench their policy preferences and forestall change. Thus, this explanation for the emergence of constitutional rights describes movements for new rights as fundamentally conservative. The origins of the rights in state constitutions, however, were often quite different. The advocates of many of the protective and redistributive mandates in state constitutions did not want to crystallize existing political arrangements. Instead, they hoped to re-write the rules of politics and transform the status quo, building a social safety net through constitutional as well as statutory law.

Emily Zackin is a doctoral student in the Department of Politics at Princeton University. You can reach her by e-mail at ezackin at princeton.edu

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