Thursday, July 10, 2014


Mark Graber

The status of state constitutions in American constitutional theory is constantly changing.  During the era of grand constitutional theory, the point of the constitutional theory enterprise was to spin an account of the good national constitution that would enable the really good justices on the Supreme Court to strike down bad state constitutional practices.  As the Supreme Court became staffed by less than really good justices, William Brennan (the next to last of the really good justices) pointed out that every move liberal constitutional theorists had proposed with respect to the national constitution might be made with respect to state constitutions.  If William Rehnquist and friends churlishly refused to acknowledge that the Eighth Amendment interpreted consistently with principles of human dignity prohibited capital punishment, the really good justices on the Supreme Judicial Court of Massachusetts might be persuaded to recognize that the similar language in the Massachusetts Constitution interpreted consistently with principles of human dignity prohibited capital punishment.  The present, far more interesting trend, is to explore the ways in which state constitutional practice is different from, or similar to, federal (and foreign) constitutional practice.  State constitutions, such scholars as Amy Bridges and Alan Tarr have taught us, are important documents in their own right, rather than inferior versions of or substitutes for the national constitution.

Looking for Rights in All the Wrong Places:Why State Constitutions Contain America’s Positive Rights is an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism.  Emily Zackin, a young assistant professor in the political science department of Johns Hopkins University, demonstrates that the common claim that American constitutionalism is committed only to negative rights is true only with respect to the Constitution of the United States.  State constitutions, the book details, are loaded with positive rights, constitutional provisions that require government officials to take certain actions to supply persons with certain goods.  Through a detailed analysis of state constitutional provisions on education, worker’s rights and environmental laws, Zackin highlights a dimension of American constitutionalism that has too often gone under the radar.

Looking for Rights in All the Wrong Places makes several points explicitly and successfully.  A good deal of the book unsurprisingly demonstrates the existence of a positive rights tradition in American state constitutionalism.  That tradition is lovingly detailed in all the major chapters.  As Zackin demonstrates, constitutional provisions obligating states to pass laws establishing public schools, protecting workers, and safeguarding the environment are staples of state constitutions, and not unique to one or two states in one or two periods of time.  Indeed, such provisions can be found in the most liberal and most conservative of state constitutions.  Second, there is nothing constitutionally peculiar about rather detailed state constitutional provisions, such as the provision in the New York Constitution dealing with certain features of ski trails in the Adirondack Mountains.  Zackin details how many state constitutional amendments are designed to constrain state legislatures and that more specific language constrains in practice far better than general principles.  Finally, Zackin suggests an important modification to Ran Hirschl’s influential hegemonic preservation thesis.  Hirschl noted that constitutional reform in many countries seems better described as efforts to entrench longstanding elites than as measures designed to empower and protect historically vulnerable peoples.  Looking for Rights in All the Wrong Places documents how many constitutional amendments are passed by movements as part of their efforts to enter corridors of power.  Constitutions, Zackin’s readers may conclude, are designed to lock in certain powerholders and policies, but sometimes their beneficiaries are emerging powers rather than ancient hegemons.

One signal virtue of any good book is the capacity to generate ideas that you really cannot figure out whether they are yours and or the author's.  Consider the following observations, all of which are clearly rooted in Looking for Rights.  Once we recognize the positive rights tradition in American constitutionalism, we might consider the history of positive rights in Anglo-American constitutionalism.  For much of English political history, the Charter of the Forest (1217), which guaranteed people access to the woodlands, was considered as central to English liberties as the Magna Carta.  Kings reconfirmed both repeatedly.  Here several developmental stories might be told.  Did Anglo-American constitutionalism take a sharp negative rights turn during the eighteenth century or perhaps during the seventeenth century, when radical members of Parliament reinvigorated the Magna Carta, but not the Charter of the Forests.  Perhaps when English liberties travelled across the ocean, a division occurred between local governments, whose notions of liberty were derived from the Charter of the Forest, and central governments, whose notions of liberty were derived from Magna Carta (which also contains more than a fair share of positive rights).   Looking for Rights has as much to offer constitutional pedagogy as constitutional development.  Readers may conclude that  the categories we use discuss rights are derived from national litigation.  Cases on the constitutional status of the environment and education are scattered across the constitutional law casebook.  By comparison, a constitutional law class organized along state dimensions might consider education as much as self-contained category as free speech.  This is particularly important given the emphasis on a practice-ready curriculum.  A fair case can be made that most of our students are far more likely to litigate a state constitutional provision on education or the environment than a First Amendment case.  If so, our constitutional law class might reflect that reality.

Perhaps the most interesting feature of Zackin’s work is how she offers fresh insights into how constitutional provisions work.  Conventional constitutional theory insists that rights provisions work by constraining government.  Zackin highlights how positive rights provisions function by empowering government, and not simply in the obvious sense that such provisions require government to do something.  Looking for Rights explains that many movements for state constitutional revision wish to empower supporters in the state legislature to begin a general program of reform and, by demonstrating political strength, convince other legislators that their political future will best be secured by supporting the movement’s goals.  Perhaps future work will examine what we might call Zackin’s laws: “The more general the rights provision, the more likely that provision functions by empowering the sympathetic decision maker.  The more specific the rights provision, the more likely that provision functions by constraining the unsympathetic decision maker.”

These are, of course, projects for other times and perhaps other scholars.  The bottom line point is that Looking for Rights is an important work by a talented young scholar that will both change how we talk about American constitutionalism and offer numerous fruitful paths for more creative thinking about the entire American constitutional experience.

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