STATE CONSTITUTIONAL RIGHTS AND DEMOCRATIC PROPORTIONALITY

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.

This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect many more rights, temper rights with attention to communal welfare, include positive rights that identify government action as necessary to liberty, and emphasize rights required to sustain democracy. These distinctive founding documents, prizing individual and collective self-determination alike, require their own implementation frameworks—not federal mimicry.

Although state constitutions differ markedly from their federal counterpart, they share features with constitutions around the world that courts adjudicate using proportionality review. Perhaps unsurprisingly, practices associated with proportionality already appear in some state decisions. Synthesizing and building on these practices, this Article argues for democratic proportionality review as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts as democratically embedded actors, not countermajoritarian interlopers. After explaining how democratic proportionality review operates, the Article sketches some implications for contemporary debates about abortion, voting, occupational licensing, and more.

The full text of this Article can be found by clicking the PDF link to the left.

* Betts Professor of Law, Columbia Law School.
** Professor of Law and Rowe Faculty Fellow in Regulatory Law, University of Wisconsin Law School. For helpful comments and conversation, we thank Margit Cohn, Rosalind Dixon, Helen Hershkoff, Vicki Jackson, Jonathan Marshfield, Jud Mathews, David Pozen, Judith Resnik, David Schleicher, Adam Sopko, Robert Yablon, and workshop participants at the Washington University School of Law, the William & Mary Law School, the University of Wisconsin Law School, the Yale Law School Public Law Workshop, and the State Democracy Research Initiative’s state constitutional law roundtable. We are grateful to Jennifer Gisi, Milo Hammer, Taylor Hatridge, Margaret Jewett, Jacob Neeley, and Harry Reis for excellent research assistance; Isaac Lunt and the staff of the Columbia Law Review for terrific editorial work; and the Abraham M. Buchman Fellowship for Administrative Law at Columbia Law School for support.

INTRODUCTION

All eyes are on the states. As the U.S. Supreme Court retrenches, state courts are taking up many issues that matter most to Americans. 1 See, e.g., Alicia Bannon, Opinion, The Supreme Court Is Retrenching. States Don’t Have To., Politico ( June 29, 2022), https://‌‌www.politico.com/‌news/‌magazine/‌2022/‌‌06/29/supreme-court-rights-00042928 [https://perma.cc/28MN-SPMQ] (“[I]n an era of federal rights reversal, state courts and state constitutions are about to be more important than ever.”); Reid J. Epstein, 2023’s Biggest, Most Unusual Race Centers on Abortion and Democracy, N.Y. Times ( Jan. 25, 2023), https://‌www.nytimes.com/2023/01/25/us/politics/‌wisconsin-supreme-court-election.html (on file with the Columbia Law Review) (discussing the political significance of the Wisconsin Supreme Court election). From abortion to voting, state constitutions are defining the content and scope of rights across the nation. 2 See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (holding that the federal “Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion”); Rucho v. Common Cause, 139 S. Ct. 2484, 2506–08 (2019) (holding that “partisan gerrymandering claims present political questions beyond the reach of the federal courts,” but that “state constitutions can provide standards and guidance”).

For all that rides on state constitutional law, there has been little attention to some of its most basic questions. Since Justice William Brennan famously revived the field in the 1970s, 3 See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 503 (1977) [hereinafter Brennan, Protection of Individual Rights] (encouraging state courts to “thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms”). Justice Brennan foregrounded a revival already underway in state courts. See Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 396 n.70 (1980) [hereinafter Linde, First Things First] (collecting commentary). Justice Hans Linde was an early and influential proponent of independent state constitutional interpretation, both in his opinions for the Oregon Supreme Court and in his scholarship. E.g., Hans A. Linde, Book Review, 52 Or. L. Rev. 325, 335 (1973) (reviewing Bernard Schwartz, The Bill of Rights: A Documentary History (1971)) (arguing that state courts should interpret state constitutions independently of the U.S. Constitution). scholars of the “new judicial federalism” 4 See G. Alan Tarr, The New Judicial Federalism in Perspective, 72 Notre Dame L. Rev. 1097, 1097 (1997) (defining “new judicial federalism” as “the increased reliance by state judges on state declarations of rights to secure rights unavailable under the United States Constitution”). have focused on whether state constitutional provisions should be interpreted in lockstep with cognate federal provisions. 5 Important contributions to this literature have explored alternatives to “lockstepping,” including “primacy” or “supplementary” models. See Robert F. Williams, The Law of American State Constitutions 140–42 (2009) [hereinafter Williams, Law of State Constitutions]. Scholars have also debated whether state constitutional interpretation should turn on state identities and state-specific sources of law. Compare Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 17–18 (2018) (yes), with James A. Gardner, Interpreting State Constitutions 79 (2005) (no), Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147–48 (1993) (no), and Goodwin Liu, State Courts and Constitutional Structure, 128 Yale L.J. 1304, 1311 (2019) (book review) (no). There is limited discussion of other state constitutional clauses, the distinctiveness of state constitutions collectively, or what those differences might mean for adjudication.

While scholars and jurists have debated substantive lockstepping, a subtler but more concerning practice of methodological lockstepping has begun to take hold. Many state courts are deciding cases using techniques developed by federal courts to implement the federal Constitution. For example, they read state constitutional clauses in isolation, as if keyed to the spare federal document, despite state constitutions’ layers of interacting provisions created through popular amendment. 6 See infra section II.A.1. They apply federal implementation frameworks, such as the tiers of scrutiny, that are based on inapposite assumptions about legislatures, courts, and democracy. 7 See infra section II.A.2. And they invoke the countermajoritarian difficulty and an attendant imperative of judicial restraint even though most state judges are popularly elected. 8 See infra section II.A.3.

Consider two recent examples. In January 2023, the Idaho Supreme Court upheld, under the state constitution, a “Total Abortion Ban.” 9 Planned Parenthood Great Nw. v. State, 522 P.3d 1132, 1147 (Idaho 2023). After taking a narrow view of the interests at stake and concluding that a right to abortion as such was not “‘deeply rooted’ . . . at the time of statehood,” 10 Id. at 1148. the court defaulted to federal-style rational basis review. 11 Id. at 1195. Such review, it explained, is highly deferential to the legislature given the properly limited role of courts. 12 See id. at 1196–97 (“Critically, the Idaho Constitution does not require that the Total Abortion Ban employ the wisest or fairest method of achieving its purpose.”). Under the toothless standard it applied, the court even accepted the law’s ostensible exception for lifesaving treatment—an affirmative defense that doctors can invoke only after going to prison—as “rationally advanc[ing] the government’s legitimate interests in maternal health and safety.” 13 Id. at 1196.

Wisconsin Supreme Court rulings on redistricting also reveal reflexive importation of federal adjudicative approaches. When the state court accepted the task of devising new legislative maps after lawmakers reached an impasse, it concluded that the proper metric was a “least change” approach, rather than any measure of partisan fairness, 14 See Johnson v. Wis. Elections Comm’n, 967 N.W.2d 469, 490 (Wis. 2021). and that it should hew as closely as possible to existing maps that were among the most gerrymandered in the country. 15 See Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev. 985, 998 (2022) (“In Wisconsin, Republicans controlled the redistricting process during the post-2010 cycle, and they used a ‘sharply partisan methodology’ to tilt the state legislative map in their favor.” (quoting Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D. Wis. 2012))). The court decided on this approach by selectively attending to constitutional clauses, without considering prov-isions concerning voting and free government, and by relying on federal sources for the proposition that judges must exercise restraint in a democracy. 16 See Johnson, 967 N.W.2d at 487–88 (“To construe Article I, sections 1, 3, 4, or 22 as a reservoir of additional requirements would violate axiomatic principles of inter-pretation . . . while plunging this court into the political thicket lurking beyond its constitutional boundaries.”). Parroting federal maxims, the court managed to hold that doubling down on a partisan gerrymander is the best way to serve democracy.

Although these examples are especially salient, problems of methodological lockstepping and a lack of state-focused constitutional adjudication are widespread. Adopting suitable doctrines, tests, and presumptions to guide our new era of state constitutional law requires greater attention to state founding documents themselves.
This Article offers a framework for understanding state constitutional rights and their adjudication. It describes how the state constitutional rights tradition differs from the federal one in multiple material ways. It then proposes a corresponding approach to state constitutional adjudication, democratic proportionality review, already immanent in many state cases.

Consider, first, some defining features of state constitutional rights. In contrast to the spare enumeration of rights in the federal Constitution, state constitutions contain plentiful individual rights, from the pursuit of happiness to the enjoyment of clean air to the right to hunt and fish. 17 See infra section I.A. At the same time, state constitutions temper expansive rights with obligations to the community. 18 See infra section I.B. A similar balance appears in state constitutions’ approach to the relationship between individuals and government. While the federal Constitution is proverbially a charter of negative liberties, all state constitutions include both positive and negative rights; they impose affirmative duties on government and cast it as a necessary guarantor of liberty as well as a potential threat. 19 See infra section I.C. Finally, state constitutions are fundamentally committed to democracy and furnish numerous rights, as well as structural requirements, to ensure popular majority rule by political equals. 20 See infra section I.D.

Each of these parts of the state constitutional rights tradition differs from the federal. Taken together, they underlie a distinctive commitment to self-determination. State constitutions at once seek to guarantee the ability of individuals to direct their lives, free from domination and arbitrary interference or neglect, and the ability of the people to direct government so that it remains responsive to the popular will. They propose, moreover, that individual and collective self-determination are intertwined. State constitutions furnish more, and more expansive, individual rights than the U.S. Constitution while also imposing more public-regarding limits on such rights to protect the autonomy of all. They place more, and more explicit, emphasis on the good of the community while also obligating the community to attend to the welfare of each member. They demand more, and more affirmative, activity from government while also creating more checks on government to foreclose arbitrary decisions and to facilitate popular responsiveness. Embracing abundance and complexity, state constitutions suggest the possibility of mutually constitutive individual freedom and collective self-rule.

It is not only states’ founding documents but also the institutions that interpret them that differ from their federal counterparts in ways that should inform constitutional adjudication. Most notably, in the states, legislatures may face a greater countermajoritarian difficulty than popularly elected courts. 21 See Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 694 (1995) (noting that elected state courts present not the familiar countermajoritarian difficulty but rather a “majoritarian difficulty,” which “asks not how unelected/unaccountable judges can be justified in a regime committed to democracy, but rather how elected/accountable judges can be justified in a regime committed to constitutionalism”); Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1735 (2021) (“[S]tate legislatures are typically a state’s least majoritarian branch. Often they are outright countermajoritarian institutions.”). And unlike the sleeping popular sovereign at the federal level, state citizens play an active and ongoing role in amending their constitutions. 22 See Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, 133 Yale L.J. Forum (forthcoming Nov. 2023) (manuscript at 1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4555738 [https://perma.cc/MSN9-3RWP] [hereinafter Bulman-Pozen & Seifter, Right to Amend].

If a state-centered framework for constitutional adjudication is needed, so too is it within reach. Notwithstanding federal mimicry, all fifty state high courts already profess to read their constitutions as a whole. 23 See infra note 208 and accompanying text. Many state courts have analyzed individual rights and government purposes in a thorough, contextual way, instead of relying on federal tiers of scrutiny to generate answers. And they have engaged in balancing when rights or interests conflict, drawing on their common law remedial tradition to do justice in individual cases. 24 See infra sections II.B, IV.A.

This Article synthesizes these and related practices and describes them as together constituting a form of proportionality review. Widely used around the world, 25 See, e.g., Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 72, 112 (2008) (describing the global reach of proportionality analysis). proportionality review involves a set of judicial inquiries “designed to discipline the process of rights adjudication on the assumption that rights are both important and, in a democratic society, limitable.” 26 Jamal Greene, Foreword: Rights as Trumps?, 132 Harv. L. Rev. 28, 58 (2018). It recognizes a wide range of interests as rights deserving protection; demands engaged, contextual review of government infringe-ments; and proposes balancing to mediate individual and collective interests. Proportionality review can be—and has been—molded to particular legal systems, and we explain how the signature steps of rights discernment, means–ends fit, minimal impairment, and balancing should be tailored to the states. 27 See infra Part III. In particular, while most proportionality jurisdictions emphasize human rights such as dignity, state courts should pay particular attention to core self-determination rights of autonomy and democratic participation. While most proportionality jurisdictions equate the legislature with the collective democratic public, state constitutions’ skepticism of unrepresentative legislatures and distinct channels for the expression of popular will demand meaningful review of state laws for arbitrariness as well as engagement with positive rights claims. And while most proportionality jurisdictions understand law as “a practice distinct from politics,” 28 Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3125 (2015) [hereinafter Jackson, Age of Proportionality]. state judges’ elected position and the ease of popular constitutional amendment mean that state courts should balance interests and explain their judgments with an eye to public engagement. 29 The democratic proportionality review we describe is thus responsive to the call for “a modern theory of majoritarian review” in the states. See Developments in the Law, The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1502 (1982). Although our account is specific to state constitutions, it shares common ground with a broader literature that urges a fit between adjudication frameworks and underlying constitutional values, including democracy. For one generative example, see Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age 13 (2023) (“[T]he underlying logic of judicial review will be . . . a commitment to representation-reinforcement that involves protecting and promoting the capacity of a democratic system to respond both to minority rights claims and considered majority understandings under a range of real-world, non-ideal conditions.”).

Although democratic proportionality review is a workable whole, we stress that its components can be adopted individually. It would be an improvement for state courts to discard clause-bound readings in favor of more holistic ones, to abandon unreflective reliance on tiers of scrutiny in favor of more meaningful consideration, or to acknowledge their position as democratically embedded actors with the authority to craft policy and the duty to justify their decisions. Moreover, it is critical that state courts protect rights foundational to individual autonomy and collective self-rule even as they engage in more comprehensive and discretionary review.
The Article proceeds in four Parts. In Part I, we offer a synoptic account of state constitutional rights. In Part II, we describe recurring mistakes of methodological lockstepping. In Part III, we provide an account of democratic proportionality review that better aligns with the state constitutional rights tradition. Finally, in Part IV, we sketch some implications of democratic proportionality review for current debates, including those over voting, occupational licensing, and abortion. State constitutions are not pale imitations of the federal document, and the new era of state constitutional rights jurisprudence we are entering should proceed accordingly.