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Great article. It’s long, though, so to summarize the main points for those of us who don’t have a ton of time:
- State constitutions protect individual rights, just as the federal constitution does. Many of these rights are the same rights listed in the federal constitution, but state supreme courts can interpret them in a manner that is more strongly protective of those individual rights. (They can’t meaningfully interpret their state constitutions as less protective than the federal constitution, though, because if something is protected by the federal constitution, a state constitution can’t un-protect that.)
- And State constititons can protect rights that have no federal analogue, while also being relatively easy to amend. Once abortion rights got de-constitutionalized at the federal level, a lot of states have gone on to explicitly protect a right to abortion in their own state constitutions.
- This is a critical time for this strategy, as we now have a US Supreme Court that is interested in dialing back individual rights protected by the constitution. So state courts need to step up, using this “judicial federalism” idea that traces back to when the 1970’s Supreme Court, led by Chief Justice Burger, started its conservative turn against the 1960’s Supreme Court decisions under Chief Justice Warren.
- Of course, this history of the movement attracts criticism that it is inherently a progressive/liberal doctrine, which has some kernels of truth, but many conservative legal scholars believe it to be important, too.
- Specific examples of legal issues that can be constitutionalized at the state level have been LGBT rights, election/voting rights, conditions of incarceration, and a rising movement to use state constitutions to mandate policies fighting climate change.
- But there are challenges to litigating these issues in states rather than the federal level. One issue, obviously, is that the impact is limited to a single state at a time. Other issues include the difficulty of funding that kind of litigation, as the federal rules for civil rights litigation actually can get the cases funded by the losers (which also makes it easier for nonprofits and donors to put up the up-front cost of litigation), which is an arrangement that basically doesn’t exist in state courts. Plus, state courts are much more clearly partisan and political than the federal courts (often with judges elected to fixed terms in partisan elections), staffed up with judges with life tenure appointed by past administrations, so there have been several examples of state supreme courts reversing themselves just a few years after an earlier decision.
- Still, it’s better than nothing, and successes at the state level can build momentum for national movements.
Please don’t replace the post URL with either of these (so it’s clear where the story comes from), but here’s 2 you can add on: