Courts as Change Agents: Do We Want More — or Less?
28 Pages Posted: 10 Sep 2014 Last revised: 22 Sep 2014
Date Written: March 17, 2014
Review of Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013).
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.
Keywords: constitutional law, state constitutionalism
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