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.
From abortion to voting, state constitutions are defining the content and scope of rights across the nation.
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,
scholars of the “new judicial federalism”
have focused on whether state constitutional provisions should be interpreted in lockstep with cognate federal provisions.
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.
They apply federal implementation frameworks, such as the tiers of scrutiny, that are based on inapposite assumptions about legislatures, courts, and democracy.
And they invoke the countermajoritarian difficulty and an attendant imperative of judicial restraint even though most state judges are popularly elected.
Consider two recent examples. In January 2023, the Idaho Supreme Court upheld, under the state constitution, a “Total Abortion Ban.”
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,”
the court defaulted to federal-style rational basis review.
Such review, it explained, is highly deferential to the legislature given the properly limited role of courts.
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.”
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,
and that it should hew as closely as possible to existing maps that were among the most gerrymandered in the country.
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.
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.
At the same time, state constitutions temper expansive rights with obligations to the community.
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.
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.
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.
And unlike the sleeping popular sovereign at the federal level, state citizens play an active and ongoing role in amending their constitutions.
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.
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.
This Article synthesizes these and related practices and describes them as together constituting a form of proportionality review. Widely used around the world,
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.”
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.
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,”
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.
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.