State Constitutional Due Process Protections After Dobbs

Abstract

The United States Supreme Court is growing increasingly hostile to substantive due process claims, ruling that unenumerated rights claims must be supported by extensive evidence of historical traditions recognizing these claimed rights. In the face of deteriorating federal substantive due process protections, advocates for individual rights should refocus their efforts on state constitutional due process protection. This article surveys state constitutional due process provisions—emphasizing their often-distinctive text and context and highlighting how state courts tend to recognize due process protections even in the absence of explicit textual due process guarantees.

Beyond my descriptive survey of state constitutional due process guarantees, I argue that litigants should draw on state constitutional due process provisions and protections when arguing for enhanced fundamental rights protections. State due process arguments should be one of many claims that advocates bring when seeking the protection of individual rights, as they may enhance and complement separate arguments arising from unique state constitutional provisions. Even if a state due process claim is likely to fail, it may create argumentative context and contrast with other distinctive state constitutional arguments and make it harder for state courts to dismiss individual rights claims through overreliance on restrictive federal interpretive methodology.

Keywords: due process, state constitutions, constitutional law, state constitutional law, Dobbs, constitutional interpretation, federalism, lockstep, textualism, Maine, Oregon

JEL Classification: K10