September 27, 2019


This post originally ran in the September 17th afternoon edition of RealClearPolitics

In celebrating Constitution Day, let’s remember a neglected feature of the U.S. Constitution — that it contemplates two sets of protections against unfair state laws.

One set is well known and comes from the charter we laud today:  the U.S. Constitution. Thanks to the Bill of Rights and the 14th Amendment, the Constitution guarantees to all Americans the rights to free speech, free exercise of religion, equal protection, due process, and so on.

Less well known, if known at all, is the other set of protections, those arising from our 50 state constitutions.  But these charters safeguard American freedoms too.

The early state constitutions, all written before the national Framers put pen to paper in 1787, supplied the models, the precise language in truth, for the guarantees adopted by the U.S. Constitution.  With few exceptions, these state documents, the headwaters of American liberty and property protections, safeguard the same rights that the U.S. Constitution protects.

That leaves us with 51 constitutions in this country.  And that leaves every American with two sets of individual-rights protections to restrain their state and local governments.

Faced with a state legislature that disfavors a religious minority, a governor who denies equal protection, or a local police officer who conducts an unreasonable search, the citizen may push back with claims based on the national Constitution and their state constitution.  Yet few Americans, not even most lawyers, appreciate this liberty-friendly feature of American federalism — that individuals can look to these two levels to protect their rights.

How did this happen?  How did we come to prefer one shot to two in trying to stop a misbegotten state law?

It’s the peril of a single history.  Just as we can make the mistake of reducing people to a single story, we can do the same with history.

Even though the history of individual rights’ protection in this country is exceedingly complicated, it has become a single story.  No mention of state legislatures in protecting individual rights.  No mention of state constitutions and state courts in protecting individual rights.

Just the history of the U.S. Constitution and the U.S. Supreme Court as seemingly the sole guardians of our liberty and property.

As with many partial histories, kernels of truth undergird this one.  Yes, the U.S. Supreme Court has provided us with the greatest individual rights story in American history:  the ending of racial apartheid through Brown v. Board of Education.  And yes, who can blame Americans for forgetting about the protections contained in their state constitutions given the failures of state courts in the past:  the era of Jim Crow being the most obvious example but hardly the only one.

Success also breeds success.  Since Brown, the U.S. Supreme Court has identified other popular rights in the U.S. Constitution, tilting us more and more to look in just one direction for the source of our liberty.  At this point, I cannot think of any country at any time in the history of the world that has embraced judicially enforceable rights — controlled by one Supreme Court — more than we have.

But the stereotyping of history, like the stereotyping of people, runs risks.  It creates damaging myths, promotes corrosive politics, and leads to missed opportunities.

One myth is that the U.S. Supreme Court always gets it right.  Look no further than Brown for proof to the contrary.

Remember that Brown had to correct the court’s own misstep — the tragic Plessy decision that permitted the “separate but equal” doctrine and Jim Crow to take root.  Another legend is that the state courts always get it wrong.

The history of eugenics tells a different story.  With few exceptions, the state courts stopped involuntary sterilizations in their tracks.  Not so the U.S. Supreme Court. In Buck v. Bell, in an 8-1 decision written by Justice Oliver Wendell Holmes, the court permitted forced sterilizations as the best solution for curbing the number of individuals with disabilities in this country.  We romanticize the federal courts at our peril.

Our preoccupation with the court as the sole guardian of liberty, and the U.S. Constitution as the sole source of liberty, has not been good for the court.  Anyone who believes this single story will want the court to honor their story in the individual rights the court chooses to recognize.

That means selecting justices to the court not because of their experience and legal abilities but because of the likelihood they will honor this worldview or that one — because they will recognize constitutional rights that we want.  As sure as night follows day, this path, left unchecked, will end in tears: It results in the politicization of the one branch of American government designed to operate based on legal judgment, not the shifting winds and will of policymaking.

A single history also obscures other opportunities, sometimes better opportunities, for recognizing rights.  The U.S. Supreme Court cannot rule for everyone.  When it fails to recognize a right, the citizen needs to recognize that state courts can fill the void and do something the high court cannot:  customize the right to account for unique historical and cultural features of that state.  If the U.S. Supreme Court decides not to nationalize a right to curb gerrymandering, to take one current example, a state court or legislature can do that very thing.

If the U.S. Supreme Court chooses to under-enforce protections for religious minorities, to take another example, the state courts can fill the void.  Through it all, these trials and occasional errors at the state level will provide valuable information to the U.S. Supreme Court before it decides whether to recognize a right in the next winner-take-all-dispute.

State constitutionalism, of course, will not please everyone.  It’s a politically neutral principle that can be used for good or for ill.

But in that respect, it shares something in common with other politically neutral and liberty-protecting features of the government created by the U.S. Constitution:  democracy, separation of powers, and federalism.  Perhaps one day we will be able to look back on the vibrant use of the states as laboratories of constitutional experimentation as being just as helpful for the development of constitutional ideas as they have been for the fertilization of legislative ideas.




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