Good enough for government work: the interpretation of positive constitutional rights in state constitutions.

AuthorUsman, Jeffrey Omar


The United States Supreme Court ruled in DeShaney (1) and reaffirmed in Castle Rock (2) that absent conditions of confinement, the Due Process Clause imposes no affirmative obligations upon government to protect an individual's life, liberty, or property. (3) These decisions reflect the Court's broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. (4) While controversial and subject to considerable criticism, (5) these decisions were not particularly surprising. To the contrary, DeShaney and Castle Rock provide a logical capstone to a series of earlier decisions from the Burger Court.

Whereas the Warren Court had inched ever closer towards constitutionalizing certain positive social and economic constitutional rights, the Burger Court firmly applied the brakes and reversed course. (6) For example, in rejecting a constitutional challenge brought by recipients of welfare funds, the Burger Court concluded in Dandridge, almost two decades before DeShaney, that "the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court." (7) The Court added that "the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." (8) The Burger Court also declined to find a constitutional right to a public education, (9) shelter, (10) or abortion funding for indigent women. (11) Thus, when Judge Richard Posner stated that the United States Constitution "is a charter of negative rather than positive liberties," (12) he was not so much inciting revolution as marking the path of prior Supreme Court precedent as it marched towards DeShaney and Castle Rock.

Like the constitutions of many countries, especially those adopted after 1945, state constitutions have charted a different course. (13) Unlike their federal counterpart, state constitutions unambiguously confer positive constitutional rights. (14) "[S]tate constitutions not only provide ... negative rights, but also often include positive mandates for rights protection or government action." (15) Or, "[p]ut another way, state constitutional language mandates that states use their plenary authority in specific ways to achieve explicit and highly self-conscious policy goals." (16) Thus, while DeShaney and Castle Rock either harshly excluded or prudently liberated, depending upon one's view, federal courts from the work of interpreting positive constitutional rights, their state court brethren have neither been so limited nor relieved. Instead, state courts must confront the challenge posed by positive rights. In addressing such rights, the interpretive approaches adopted by state courts have reflected a rich diversity. But it cannot be ignored that many state courts have struggled mightily with the task.

This article focuses upon a species of state constitutional rights to which there are no federal counterparts, positive constitutional rights, and the interpretation thereof by state courts. The goal is both descriptive and normative. The article first defines what constitutes a positive constitutional right and then highlights examples in state constitutions. The article next addresses differences between interpreting state constitutions and the Federal Constitution and between interpreting positive and negative rights in state constitutions. The article then describes the various approaches state courts have taken to interpreting affirmative constitutional rights. Ultimately, the argument is advanced that there are five primary types of affirmative rights provisions in state constitutions, each of which requires a distinct interpretive approach.


    The difference "between positive and negative rights is an intuitive one." (17) Positive rights derive their meaning through contrast with negative rights; the space between these two concepts gives meaning to the respective terms. (18) Whereas affirmative or positive rights are essentially "private entitlements to protection by the state," negative rights are "protections against the aggressive state." (19) A constitutional right is affirmative where "it imposes on government some obligation to bestir itself, to act, in a manner conducive to the fulfillment of certain interests of persons." (20) In contrast, "negative rights entail freedom from government action. To enforce a negative right, a citizen merely insists that the government not act so as to impinge her freedom." (21) Positive constitutional rights suggest "a form of affirmative obligation on the part of the government to provide something to people. By contrast, a 'negative' right indicates that the government may not do something to people, or deny them certain freedoms." (22) The underlying historical rationale between positive and negative rights has been well stated by Judge Posner: "The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them." (23)

    Negative and positive rights, however, are best understood as ends of a continuum rather than wholly separate dichotomous concepts. The distinction between positive and negative rights is not perfectly pure either in terms of absolute separations based upon imposition of financial costs on the government or between governmental action and inaction. "[T]he difference between negative and positive rights is not that one of them has budgetary implications and the other does not. Negative rights, too, cost money." (24) For example, "in order to give substance" to private property protections, expenditures on police, courts, and a legal system are necessary. (25) Even classic negative rights such as freedom of speech, guarantees against unreasonable searches and seizures, protections against compelled self-incrimination, and the right to a jury trial, as a practical matter, impose financial costs upon the state. (26) Whether police officers become necessary for protecting a controversial group speaking in a public park or more costly criminal investigative methods are required because of limitations imposed by the Fourth, Fifth, or Sixth Amendments, there is an attendant financial cost. (27) The imposition of expense is even more immediately apparent with the constitutional obligation to provide indigent defendants with representation for purposes of defending against criminal prosecutions. (28) Nevertheless, there appears to be a practical distinction in terms of "the size of the budget consequences.... Protecting [negative] constitutional rights is [relatively] cheap, though not free. Protecting social welfare rights is expensive." (29)

    Similarly, "[t]he distinction between state action and inaction does not entirely help to draw a clear line. Several 'negative' rights may also imply state action." (30) Professor David Sklansky has termed such provisions quasi-affirmative rights" as they require governmental action to realistically meet constitutional requirements. (31) For example, the government must act to provide assistance of counsel for indigent criminal defendants under the Sixth Amendment.

    While the distance between positive and negative rights may be only a matter of degrees on a continuum, the difference between the light and dark shades of gray here is significant. The "distinction helpfully underscores the fact that the realization of [positive rights] generally requires more elaborate measures and longer-term planning on the part of the state." (32) Differentiation between positive and negative rights in terms of action versus restraint and levels of expenditures is neither incoherent nor inconsistent in apprehending these rights. (33)

    For some the lack of a pure separation based on expenditures or action versus inaction proves to be too much to accept that a genuine difference exists between positive and negative rights. (34) Even if one does not accept the above discussed division as a meaningful basis of distinction, there is a second basis that may, nevertheless, prove meaningful. Economic rights, so-called second generation rights such as health care, housing, education, etc., are the equivalent of positive rights, while negative rights include classic political freedoms, so-called first generations rights such as freedom of speech and religion. (35) For those who do not accept the utility of the positive and negative rights division, the task of this article will be better understood as addressing second-generation rights in state constitutions.


    Positive rights in state constitutions are a multifarious sort, protecting a wide variety of interests. There are relatively unique provisions such as the Idaho Legislature's constitutional duty to act to prevent the spread of livestock diseases, (36) the North Carolina General Assembly's duty to care for orphans, (37) and the Wyoming Legislature's duty to encourage virtue and temperance. (38) There are also provisions that appear in numerous state constitutions such as victims' rights measures (39) and open courts guarantees. (40) A limited cross-section of common affirmative rights are discussed in more detail herein including state constitutional provisions relating to education, assistance for indigent persons and physically or mentally challenged persons, as well as state constitutional provisions relating to healthcare and the environment.

    1. Education Clauses in State Constitutions

      The United States Supreme Court has declared that "education is perhaps the most important function of state and local governments." (41) The electorate generally concurs with this assessment. (42) Not surprisingly, every state constitution contains a clause...

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