By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions have not materialized as a robust source of counter-majoritarian rights during earlier periods of federal rights stagnation. To the contrary, state constitutional rights tend to conform with popular sentiment regarding rights because they are heavily mediated by various processes of popular constitutionalism (such as popular election, recall, and retention of state judges, and the initiative and referendum). From this point of view, state constitutional rights have limited potential in protecting political minorities from abusive popular majorities. However, this Article’s second claim is that state constitutional rights are well-situated to address many contemporary rights battles precisely because of their majoritarian nature. Many extant rights conflicts are between statewide popular majorities that support rights expansion and misaligned state governments looking to disregard or evade popular preferences. State constitutional rights are better situated to address this problem than the problem of abusive popular majorities. The challenge for contemporary state courts in this moment is to articulate an independent rights jurisprudence that accounts for the popular nature of state constitutional rights rather than parrot the counter-majoritarian jurisprudence of the United States Supreme Court, which is largely inapposite when adjudicating state constitutional rights. The Article concludes by offering some preliminary thoughts on how state courts might approach today’s rights disputes under state constitutions.
Jonathan L. Marshfield,
State Constitutional Rights, State Courts, and the Future of Substantive Due Process Protections,
SMU L. Rev.