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 intra-state 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.
Jonathan L. Marshfield, America's Misunderstood Constitutional Rights, 170 U. Penn. L. Rev. 853 (2022)