Local Government Book Review 127 Harv. L. Rev. 1419

Courts as Change Agents: Do We Want More — Or Less?

Turning to state courts and legislatures for rights protection


In claiming that Americans are looking for rights in all the wrong places, Professor Emily Zackin targets two flawed mindsets: (1) that the exclusive source of new individual rights is the federal Constitution, as opposed to the state constitutions; and (2) that constitutional rights in general are exclusively negative, just libertarian prohibitions on governmental action, not affirmative calls for the government to act.

The first point returns to a once dominant, then forgotten, now reemerging, insight — that constitutional rights do not originate solely in the U.S. Constitution or come only from decisions of the U.S. Supreme Court. There are fifty-one constitutions and fifty-one high courts, and all of them protect a wide variety of individual rights. The second point, the central thesis of Zackin’s book and the useful insight offered in it, acknowledges that the American constitutional law tradition focuses on negative protections — structural and individual-rights limitations on government — but claims that this perspective does not describe that tradition in full. To get the full picture, she urges, one must account for a strain of positive constitutional rights dating from the nineteenth century and found in most state constitutions, rights that operate by compelling governments to act, not by prohibiting them from acting. To support the point, Zackin offers three examples of positive-rights traditions in the states’ constitutions: the right to a free and adequate public education, the rights to safe working conditions and fair pay, and the right to a clean environment. The book purports to tell what is, not what should be. But some will take Zackin’s description to suggest, if not to call for, a norm-changing view: that the American constitutional tradition ought to account for such positive rights and appreciate the possibility of more.

This last possibility prompts two competing reactions. The first calls to mind an incident from my youth. When I was about ten, it rained day after day for a week or so. After the rain had saturated the ground, the water began to make its way into our basement through two cracks in the wall. Before long, the basement floor was wet and covered with water. My brothers and I started a brigade, filling buckets of water in the basement and dumping them outside. Frustrated by our lack of progress in stemming the rising tide (and oblivious to the possibility that the water dumped outside would soon migrate inside), we grew weary. I suggested that this project might be a lot easier if we knew the full scope of the task ahead. So I took a hammer and a chisel and widened the cracks in the wall, replacing the dripping water with a torrent. Now, I thought, we could relax, wait until the water had stopped coming in, then complete the task of bailing out the basement after we knew exactly what we had to deal with. The water did not stop — at least not until it was about three feet deep, apparently at an equilibrium point between the water inside and outside the house.

That was my first encounter with the principle that more is not always better — that you cannot flood your way out of a deluge. Where some see saturation when it comes to judicially enforceable constitutional rights in America circa 2014, others see room for more. Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights.

But I have another reaction. Is it possible that the judicialization of so many American policies through the U.S. Supreme Court started in part because the state courts and the state legislatures failed to perform their independent roles in respecting and enforcing individual rights? Is it possible that a revival of state constitutionalism, even one with positive rights, would simultaneously return us to something approximating the original design and ease the pressure on the U.S. Supreme Court to be a vanguard rights innovator in modern America?

So which is it? Does state constitutionalism usefully offer a new source for more constitutional rights, including rights that impose affirmative, not just prohibitive, duties on government? Or does this cure embrace the disease and spread its symptoms? For reasons small and large, I favor a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation, making me open to Zackin’s thesis and, yes, vulnerable to the charge that a temporary flood cannot bail us out of a deluge.