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.