A Nonpartisan Necessity: State Constitutional Law as an Evenhanded Source of Rights

Abstract

Judge Sutton’s argument for independent state constitutional analysis is above all correct. But besides that, it’s critical to preserving American constitutional law because it protects personal liberties yet is nonpartisan every way. Most obviously, it’s nonpartisan from a left-right perspective; some state constitutional rights will be favored by Republicans (e.g. gun rights) while others will be favored Democrats (e.g. establishment prohibitions). Less obviously, however, it’s also nonpartisan from an up-down perspective. Independent state constitutional analysis may initially seem to favor libertarian outcomes because it often just gives state governments another way to lose—it prohibits some state action under a state constitution that the Federal Constitution otherwise permits. But that impression only rings true when considering negative rights. When taking account of positive rights, independent state constitutional analysis may in fact lead to larger state governments that can provide their citizens with those positive rights. And that possibility only increases after examining state courts’ abilities to independently imply positive rights guarantees in their state constitutions. All of which is to say Judge Sutton lays out an incredibly equitable framework for courts to define the next generation of constitutional rights—relying on state constitutions.