State Constitutions Are Far Better at Constraining Executive Power and Defending Rights than the Federal One
Committed liberals should look to them for guidance on structural reforms to stop Uncle Sam’s attacks on American liberties
With another four years of a Trump Administration before us—and therefore perhaps another one, two, or more, new Trump justices on the Supreme Court—liberals, especially those of a progressive bent, may be understandably trepidatious about the future of constitutional law. But whatever the future holds, there’s hope from somewhere else: the states.
The recently galvanized conservative court majority has been mixed from a liberal perspective, and liberals can disagree when it comes to individual cases. There are certainly upsides—strong protections for freedom of speech seem to continue (for now) and property rights seem more secure. When the court said in 2023 that Hennepin County, Minnesota, unconstitutionally kept a massive profit after selling an elderly woman’s condo in a tax sale, it demonstrated that homeowners truly have a better shot at fighting government overreach. The court’s ruling was unanimous. A decade or two ago that case easily could have gone the other way. Further, last term the court—also unanimously—shut down an attempt by Texas’s attorney general Ken Paxton to deprive property owners of a cause of action against government negligence. Richard DeVillier and other landowners (represented by my colleagues at the Institute for Justice) now can pursue takings claims against the state for massive flooding caused by a highway barrier.
But there’s more to liberal constitutionalism than property rights and the First Amendment. And in many other areas liberals—justifiably—have a great deal of concern. The Imperial Presidency looks as imperial as ever. Unenumerated rights of all kinds were given a cold shoulder in the Dobbs opinion. Further, the court has gone oddly silent when it comes to the Fourth Amendment’s search and seizure protections. The last few terms have seen no Fourth Amendment cases. And when it comes to remedies for government wrongs, things look bleak. The court has all but annihilated damages claims against federal officials for constitutional violations, such as retaliation for protected speech; and despite occasional statements by some justices to reform or abolish the pernicious doctrine of qualified immunity, it rolls on across the federal court system just about as strong as ever, protecting officials on all levels from liability for constitutional violations that although obvious aren’t “clearly established” in prior case law. Further, any attempt to enforce the Constitution’s ban on cruel and unusual punishments looks theoretical at best. And challenges to gerrymandering in federal court are explicitly not allowed. All of these areas could get worse for challengers depending on who the next justice or two is.
But even though the story of liberal constitutionalism is grim at the federal level these days, tales at the state-level are far rosier. This is not merely a feel-good point. State constitutional law doesn’t always stay in the states. To be sure, state constitutions can’t bind federal actors. No one will be able to run to state court to stop a Trump administration initiative. But trends in the states have repeatedly come around to change what happens at the federal level. Marriage equality, the right to counsel for indigent defendants, and the abolition of poll taxes are all examples of changes in federal constitutional law that only happened after many state courts had already interpreted their own constitutions. The same could be true for some of issues of concern to liberals right now.
Constitutional Pluralism
The vast majority of “law” in the United States doesn’t emanate from the federal government but is made at the state and local level. Additionally, we don’t just have “laboratories of democracy.” As part of those democratic experiments we have 51 constitutions. Every state gets one. And that means every state has constitutional law of its own, where the state’s people, lawmakers, and judges interpret their own constitution about how that constitution binds its lawmakers. For every state law, city ordinance, gubernatorial proclamation, or local police policy there’s an additional constitution that governs. As Judge Jeffrey Sutton likes to say, when it comes to challenging state or local laws as unconstitutional you get two free throws, one under the U.S. Constitution and another under your state’s constitution.
And under this federalist framework there are plenty of hopeful prospects for liberals of all stripes. Given how many laboratories we’re talking about, opportunities aren’t uniform, but there are many within our liberal constitutional order. I’m going to give a few examples here but keep in mind there are many others as well.
Separation of Powers
Arguments vary on what limits Congress can place on a president as well as the flip-side—what limits the Constitution places on Congress handing its lawmaking power off to the executive branch. But whatever the right answer, the Supreme Court has increasingly allowed federal power to flow into presidential hands, such as loosening restrictions on whom the president can fire.
At the state level, though, things are quite different. The executive is hardly ever “unitary.” Executive officers, such as attorneys general or secretaries of states, are generally elected and independent of the governor. This flows into state courts placing more limits on those governors. For example, the “nondelegation doctrine”—a theoretical limit on Congress giving lawmaking power to the president that hasn’t been enforced at the federal level since 1935—is a going concern in the states, especially when private parties wield the power of the law.
Unenumerated Rights
Every state has a bill of rights, sometimes called a “declaration.” Just about all of them include more rights than the U.S. Constitution’s first 10 amendments. But as I’ve detailed elsewhere, constitution writers realize that you can’t list every right that’s important to a free society. So, through various kinds of constitutional language they imply that there are others. It’s then up to the rest of us—especially judges—to enforce those “unenumerated” rights.
The U.S. Supreme Court has not been enthusiastic about unenumerated rights for a long time other than a select few “privacy” rights. Of course, with Dobbs those are either now gone or potentially on thin ice. That’s not true by any means in the states, though. For example, in recent years a few state high courts have clarified that their state constitutions protect the right to earn a living, an unenumerated right, at a higher level than the near-non-existent level it receives in the federal courts. Georgia did this just last year when its supreme court declared the state’s lactation consultant license (yes, the state legislature actually made that a thing) unconstitutional. This cleared away a law that would have put hundreds of women out of work who had long, and safely, advised new mothers on how to breastfeed but weren’t members of the approved professional cartel.
Of course, the big news in unenumerated rights and state constitutions the last few years has concerned abortion. Pro-choice and pro-life advocates can each find their own mixed success. But the separate story of some states amending their constitutions to include explicit abortion rights language also illustrates how unenumerated rights can become enumerated rights at the state level.
Search and Seizure
One right that’s long been enumerated in state constitutions is the right to be secure from unreasonable searches and seizures. If there’s one area where state courts have bucked the U.S. Supreme Court in recent decades, it is interpreting these analogues to the federal Fourth Amendment. Various state high courts have repeatedly said they are not beholden to federal Fourth Amendment precedent when interpreting these similar, but separate, provisions. This has often led to greater protection for individuals’ privacy.
The U.S. Supreme Court has infamously held that “a sniff’s not a search” when it comes to drug dogs poking around people’s cars and bags (although not homes, thankfully). This means people often have no Fourth Amendment protection whatsoever from nosey canines. But many states, including Minnesota, Montana, and Pennsylvania, have rejected this, requiring at least some reasonable suspicion before the police can let loose a forensic tool with questionably reliability.
More ominously, the Supreme Court has said that private land which is not inside a building or immediately around a home is an “open field” and unprotected by the Fourth Amendment. That’s 96% of all private land in the country! State courts, though, from all walks of life, have interpreted the scope of their Fourth Amendment analogues more broadly. This includes politically diverse states such as Mississippi, New York, Oregon, and Tennessee—names that aren’t generally grouped together when it comes to constitutional law. Or much else. There, property owners have recourse when state officials do things like sneak onto private land and set up cameras without the owner’s knowledge.
Remedies for Government Wrongs
If the government injures you, it stands to reason it should compensate you, just like a private citizen would. This seems like a fundamental tenet of any liberal society—that the state is not immune from its own wrongs. And that should be especially true if your injury is of a constitutional nature, such as unreasonable seizures (as when a Drug Enforcement Administration SWAT team goes to the wrong address and shoots the dog). Yet in the bizarro world of governmental immunity, this can be almost impossible. Relying on variations of the fiction of “sovereign immunity,” the Supreme Court has said both the federal and state governments can only be sued for damages if Congress or the state legislature says so. This is true even if the Constitution guarantees the right at issue. Thus, there is a right but—at least for damages that already happened—there is often no remedy. (And this is on top of qualified immunity, an immunity Congress never adopted but the Supreme Court simply made up.)
Some state courts have said not so fast under their own constitutions. Nevada’s and Michigan’s supreme courts recently ruled that their constitutions provide a cause of action for violations of state constitutional rights. Other state courts have similarly ruled in certain contexts. While the lay of the land is decidedly mixed across the country—as my colleagues detailed in a 50-state report—it is hopeful.
Cruel and Unusual Punishments
The Eighth Amendment bans “cruel and unusual punishments.” But the Supreme Court has been extremely hesitant to stop them, only enforcing this language in (increasingly fewer) capital cases and limited forms of prison conditions.
But as the Brennan Center’s Kasia Wolfkot details, that’s often not true at the state level. At least a dozen states have interpreted their own versions of the Eighth Amendment to “offer broader protections against excessive prison sentences”—as when juveniles receive catastrophically long prison terms. There’s less pushback when it comes to prison conditions litigation, but some is emerging, including more chances to sue for damages when harmed in government custody. Given that most people in jail or prison are held at the state level the opportunities for further state constitutional development regarding punishments seem positive.
Gerrymandering Shenanigans
Finally, in 2019 the Supreme Court ruled that the drawing of constituency lines to gain partisan advantage wasn’t their problem. But at the same time the justices noted that wasn’t necessarily true for states constitutions and state courts. Since then, several state court systems have entertained challenges to gerrymanders. Results are mixed, and liberals can disagree about how effective they are as a solution. But challenging gerrymandering is an example of state constitutional law carrying the torch for representative governance when it’s been turned off at the federal level.
State constitutional law isn’t as glamorous or headline grabbing as its federal counterpart. Partly for that reason—and partly because there’s 50 times more work—constitutional scholars devote far more attention to what’s going on at the Supreme Court and to the machinations of whoever fills its nine seats. But it’s only one part of how constitutional law is made in our pluralistic legal society.
Those who are dedicated to steering the federal constitution in a more genuinely liberal-democratic direction—securing more rights, limiting government abuses by giving individuals legal recourse, strengthening the guardrails around executive powers, and ensuring representation for all citizens—ought to pay more attention to the state constitutional scene. They might fight valuable fodder—and lessons—to advance their cause.
© The UnPopulist, 2024
Follow us on Bluesky, Threads, YouTube, TikTok, Facebook, Instagram, and X.
 | A guest post by
|