AMERICA'S MISUNDERSTOOD CONSTITUTIONAL RIGHTS.

• Author: Marshfield, Jonathan L.

In contemporary rights jurisprudence and theory, the Fourteenth Amendment and the Federal Bill of Rights are most frequently conceptualized as bulwarks against majoritarian abuses. From Brown v. Board of Education to Obergefell v. Hodges and even District of Columbia v. Heller, federal rights are primarily understood as enforceable legal constraints on popular majorities (especially intrastate majorities). Viewed through this lens, state constitutional rights are often dismissed as fundamentally dysfunctional because they are too easily amended through majoritarian political processes to constrain popular majorities. After all, what good is a state constitutional right to marriage equality, for example, if it can be quickly eliminated by a majority vote?

This article provides the first dedicated assessment of this perspective on state constitutional rights by drawing on a largely neglected set of sources: the debates of all known state constitutional conventions where state bills of rights were forged and reformed (105 conventions from 1818 to 1984). These sources suggest that prevailing critiques of state constitutional rights are misguided and limit our understanding of American public law. Although the Federal Bill of Rights may function as an important constraint on popular majorities, state bills of rights serve a different purpose. They were created primarily as a device for democratic majorities to control wayward government officials and representatives. State bills of rights were not designed to operate as higher law beyond the reach of legitimate democratic majorities. To the contrary, they were built to function as higher law beyond the reach of government, but always within the immediate reach of the people.

Excavating this perspective on state bills of rights not only places them in their proper historical and theoretical context, but it also disentangles them from their federal counterparts and enables more sophisticated inquiries into how constitutional rights function within our federal system. These findings also have timely implications for federal and state rights jurisprudence. With the Supreme Court now likely to reevaluate the breadth of certain federal protections--perhaps in favor of giving state courts more space to develop state constitutional rights--it is important that we have clarity regarding the deep structure of state constitutional rights. My findings show that despite well-intentioned exhortations from prominent judges and scholars, state constitutional rights are not built to provide an alternative corpus of meaningful counter-majoritarian protections--at least not in the same way as federal constitutional rights.

INTRODUCTION 855 I. MISUNDERSTANDING STATE 863 CONSTITUTIONAL RIGHTS A. Rights as Bulwarks 863 Against Popular Majorities B. "Amendomania" and 867 the Dysfunction Critiques 1. The Entrenchment 867 Critique 2. The Direct-Democracy 870 Critique 3. The Under-Enforcement 871 Critique C. Existing Responses 872 II. CONCEPTUAL ORIGINS 877 OF STATE CONSTITUTIONAL RIGHTS. A. Historical 878 Context B. Earliest Texts 882 C. Early Convention Debates. 886 1. "Declaratory Acts of the People"--Enumerating 887 Rights to Protect Popular Majorities. 2. "An Ordinance of the People"--Implementing Popular 891 Oversight through the Bill of Rights. III. STATE BILLS OF RIGHTS IN CONTEXT. 893 A. Antebellum Rights Issues 894 1. Corporate Privilege and State Bills of Rights 894 2. Imprisonment for Debt 899 3. Racial Exclusion Provisions and Colonization Programs 902 B. Secession, Reconstruction, and Disfranchisement 904 1. State Bills of Rights as the Epicenter of Efforts to 905 Control State Government 2. Rights Reform During Reconstruction and 908 Disenfranchisement C. Progressive Era Rights Issues 909 1. Workers' Rights 910 2. Labor Rights 915 D. Twienth Century Rights Issues 918 1. Positive Economic and Environmental Rights 918 2. Equal Protection and Antidiscrimination Norms 922 IV. UNDERSTANDING STATE CONSTITUTIONAL RIGHTS 926 A. Twenty-First Century State Constitutional Rights 926 B. Implications for state Rights Jurisprudence 929 C. Implications for Federal Rights Jurisprudence 931 CONCLUSION 933 APPENDIX A: CONVENTION DEBATES ADDRESSING STATE BILLS 935 OF RIGHTS APPENDIX B: TEMPORAL DISTRIBUTION OF DEBATES ADDRESSING 936 STATE BILLS OF RIGHTS (1818-1894) APPENDIX C: GEOGRAPHIC DISTRIBUTION OF DEBATES 936 INTRODUCTION

In 1972, civil rights advocates and death penalty opponents won a huge victory before the California Supreme Court. (1) The Court ruled that capital punishment violated the state's bill of rights. (2) The ruling ended the death penalty in California and extended criminal protections far beyond the Federal Bill of Rights. It was a significant decision. But it was quickly undone. Nine months later, in a statewide referendum, California voters amended their bill of rights to reinstate the death penalty and prohibit future court rulings rendering the death penalty unconstitutional. (3)

This narrative is now familiar and increasingly common. (4) Almost every election cycle, voters in states around the country decide on changes to their state's bills of rights. (5) Voters have, for example, cut back protections for criminal defendants, (6) formalized privacy protections, (7) banned same-sex marriage, (8) authorized public assistance for parochial schools, (9) constitutionalized a right to hunt and fish, (10) and enhanced gun and property rights. (11) This "amendomania" has caused state bills of rights to grow dramatically in length, scope, and detail. (12)

Many scholars view the popular responsiveness of state constitutional rights as a fundamental defect. (13) Critiques take various forms, but they generally rest on the assumption that, in certain key respects, state bills of rights should function like the Federal Constitution. Specifically, as Justice Robert Jackson declared in 1943, the "purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities... and to establish them as legal principles to be applied by the courts." (14) From this perspective, state constitutional rights seem obviously defective. Rather than sitting beyond ordinary politics, they are frequently the epicenter of political slugfests. (15) Rather than ensconcing courts as their guardians, they displace courts through unrelenting popular intervention and micromanagement. (16) It is understandable, therefore, that state bills of rights have been described as "primitive", "ineffective", "flabby", and even "namby-pamby." (17)

But these critiques have skipped a step. They fail to consider that state constitutional rights may be designed with different priorities and objectives. In this regard, scholars have long observed that state constitutions are structured around a set of public fears regarding democracy that differ from the assumptions underlying the Federal Constitution. (18) Alan Tarr has argued, for example, that federal constitutional design is committed to the Madisonian belief that self-interested majorities are a dominant threat to democracy. (19) On this view, "majority faction" is a concern because democratic processes enable majorities to capture government for their own ends at the expense of minorities and individual liberties. (20) Under the Federal Constitution, judicial review and a deeply entrenched constitutional text have come to play a key role in counteracting the danger that Madison conceptualized. (21)

State constitutions, on the other hand, tend to orient around a different concern. State constitutionalism seems obsessed with the fear that government will be captured, not by a self-serving democratic majority, but by an elite minority. (22) Indeed, state constitutions have various structural features that reflect skepticism of representative government. (23) That skepticism is, of course, layered, nuanced, and contextual. It includes generic concerns about government accountability, as well as deeper cynicism about the efficacy of representative government. But if there is a single thread that connects state constitutions across jurisdictions and time, it is a populist fear that government is prone towards capture and recalcitrance. (24)

All of this suggests that there is good reason to investigate state bills of rights on their own terms rather than assuming that they fit the federal mold. To that end, this Article analyzes prevailing critiques of state bills of rights by situating them in the context of the convention debates where those rights were forged, reformed, and operationalized. To do this, I collected and reviewed all known convention debates where state bills of rights were discussed (105 conventions from 1818 to 1984). (25) This dataset includes debates from every decade during that period and at least one record from all but six states. (26) Based on this review, I find that prevailing accounts of state constitutional rights are misguided and fundamentally misunderstand their structure and design.

My core claim is that although the Federal Bill of Rights may operate as a bulwark against abusive majorities, state bills of rights grew from the belief that extra precautions are necessary to prevent government officials from using their political power to thwart or oppress democratic majorities. This approach emphasizes that representative government creates opportunities and incentives for officials to pursue their own private interests at the expense of the people. Importantly, it also views direct popular intervention as a necessary antidote for government recalcitrance. On this view, a bill of rights is an "ordinance of the people"--a dynamic set of substantive instructions and limitations on government that is adopted and jealously maintained by the people themselves. (27) To be sure, certain foundational rights (like political equality within the...