Defining rights in the states: judicial activism and popular response.

Author:Miller, Kenneth P.


This article examines state-level contests over the definition of rights. While the U.S. Supreme Court has established a floor of rights that all states must observe, states can expand rights beyond federal minimums. During the past four decades, courts in several states have developed expansive definitions of rights in hotly contested areas including capital punishment, criminal procedure, racial desegregation, abortion, free speech, education equalization, non-establishment of religion, non-discrimination on the basis of sexual orientation, and marriage for same-sex couples. Many of these decisions have endured and substantially reshaped the law. Others, however, have been reversed through state constitutional amendments. This article documents these patterns of conflict and concludes that the controversial state-level practice of popular referendums on contested rights provides important benefits, including increasing the legitimacy of new rights and reducing popular pressure for removal of judges.


    The short span between the 1960s and early 1970s was a time of transition in American constitutional law. As Chief Justice Earl Warren and other champions of liberal judicial activism left the U.S. Supreme Court, they were replaced by nominees of a President committed to "strict construction" of the Constitution and its rights guarantees. (1) Many liberals feared that the reconstituted Supreme Court would abandon its commitment to the expansion of individual and minority rights. (2) Seeking to sustain the Warren-era rights revolution, they turned in an unlikely direction--the states. (3) For years, many liberals had viewed the states as constitutional backwaters, (4) but some state judges were in fact eager to carry on the Warren Court's rights-expanding legacy. Starting in the 1970s--with great intentionality--several state courts began invoking formerly dormant state constitutional rights provisions in ways that broadened rights beyond federal constitutional minimums. (5) For the past four decades, this movement, known as the "new judicial federalism," (6) has transformed constitutional law as state judges have established new state constitutional rights in areas such as capital punishment, criminal procedure, equalization of public school funding, racial desegregation, abortion, free speech, non-establishment of religion, non-discrimination on the basis of gender or sexual orientation, and legal recognition of same-sex unions.

    The rights revolution in state constitutional law has generated both praise and criticism. Many lawyers, judges, and legal academics, fully immersed in a rights-honoring legal culture, have celebrated the expansion of rights at the state level. They contend that the movement has bestowed a double benefit: while achieving the good of expanding individual rights, it also has promoted the separate, independent good of revitalizing federalism. (7) According to this view, the movement's focus on state constitutional texts has breathed life into these documents and established a dialogue between the U.S. Supreme Court and the states regarding the proper understanding of individual rights and liberties. (8) Critics, however, have argued that the new judicial federalism is less concerned with creating a distinctive state constitutional jurisprudence than in achieving a liberal agenda of expanding certain preferred rights claims by any available means. (9) The emergence of an independent state constitutionalism, in this view, "constitution shopping" has merely provided activists a vehicle for and re-litigating rights cases whenever they lose in the federal courts. (10)

    As state courts have recognized new and controversial rights claims, citizens have sometimes pushed back. One democratic check on state courts is judicial election, available in some form in most states. (11) Voters have occasionally used judicial elections to reconstitute state courts they consider activist--most notably in California in the mid-1980s and Iowa in this decade. (12) However, more frequently, voters have directly preempted or overturned judicial expansion of rights by adopting "court constraining" state constitutional amendments. (13) The stakes in these conflicts are high. While many consider the expansion of rights to be a requirement of justice, (14) others contend that recognizing an interest as a right trumps other competing interests that are of great importance but lack the status that a "right" confers. (15) State-level struggles over the definition of rights are thus hard-fought.

    Overall, how have judicial decisions expanding state constitutional rights fared in the court of public opinion? To address this question, this article surveys the range of such decisions as well as popular efforts to limit this exercise of judicial power. (16) The article focuses on the period beginning in the early 1970s when supreme courts in several states launched the movement to interpret state constitutional rights more expansively than the U.S. Constitution requires, which, in turn, prompted popular movements to constrain state courts. (17) The record from the past four decades shows that while most judicial expansion of state constitutional rights have gone unchallenged, mobilized voters have overturned numerous such decisions and have preempted others, and that voting on rights has become a regular feature of the state model of constitutional interpretation. (18) After reviewing this history, the article concludes that the people's ability to vote on state constitutional rights is a beneficial feature of the nation's dual system of constitutional law. (19)


    The most influential advocate of the state-level strategy for the expansion of rights was a frustrated member of the post-Warren U.S. Supreme Court, Associate Justice William J. Brennan, Jr. In a 1976 speech delivered to the New Jersey Bar Association, later published in the Harvard Law Review under the title State Constitutions and the Protection of Individual Rights, the former pillar of the Warren Court lamented the "trend in recent opinions of the United States Supreme Court to pull back from, or at least suspend for the time being" proper enforcement of the Bill of Rights and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (20) Justice Brennan noted with approval that some state courts disagreed with these decisions and were "now beginning to emphasize the protections of their states' own bills of rights." (21) Brennan concluded:

    [S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law--for without it, the full realization of our liberties cannot be guaranteed. (22) The movement that Brennan celebrated and sought to nurture was advancing in several states. By almost any measure, however, the California Supreme Court was setting the pace. Already considered one of the most activist and influential state courts in the nation due to its innovations in tort law, (23) California's high court now sought to lead a similar revolution in state constitutional rights. During this period, the court was controlled by a solid majority of liberal justices, one of whom, Stanley Mosk, became a leading theoretician of the new judicial federalism. (24) Throughout the 1970s and into the 1980s, the court issued a long series of landmark decisions expanding state constitutional rights. (25) While the California Supreme Court took the lead in expanding rights beyond federal constitutional minimums, (26) enthusiasm for the movement has varied from state to state. Over time, the supreme courts of New Jersey (27) and Massachusetts (28) have competed with California (29) for leadership of the new judicial federalism, and courts in Oregon, (30) Washington (31) Montana, (32) New Hampshire, (33) Maine, (34) Vermont, (35) Connecticut, (36) and several other states (37)--largely in the West and the Northeast--have also been enthusiastic participants. (38) Some state supreme courts, especially in the South and parts of the Midwest, have been more reluctant, generally preferring to follow the U.S. Supreme Court's interpretation of rights. (39)

    In places where the new judicial federalism has taken hold, a pattern has emerged: state supreme courts have repeatedly invoked state constitutions to broaden rights beyond where the U.S. Supreme Court is willing to go. (40) The catalogue of these expanded state constitutional rights is impressive in both scope and degree of controversy. It includes broad rights to equality on the basis of gender (41) and sexual orientation; (42) the right to sexual privacy; (43) the right to refuse life-sustaining medical treatment; (44) the right to use marijuana; (45) the right to equally funded schools; (46) the right against exclusionary zoning; (47) the right against taking of private property; (48) certain economic rights; (49) the right of free speech on private property; (50) the right to free exercise of religion; (51) and the right against establishment of religion. (52) Five prominent areas where state supreme courts have broadened rights beyond federal minimums and then the people have pushed back are: capital punishment, criminal procedure, racial desegregation, abortion, and the legal status of same-sex unions. (53) The balance of this section will summarize how state courts have expanded state constitutional rights in these five areas. The succeeding section will examine democratic responses to these decisions.

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