The United States Supreme Court ruled in DeShaney (1) and reaffirmed in Castle Rock (2) that absent conditions of confinement, the Due Process Clause imposes no affirmative obligations upon government to protect an individual's life, liberty, or property. (3) These decisions reflect the Court's broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. (4) While controversial and subject to considerable criticism, (5) these decisions were not particularly surprising. To the contrary, DeShaney and Castle Rock provide a logical capstone to a series of earlier decisions from the Burger Court.
Whereas the Warren Court had inched ever closer towards constitutionalizing certain positive social and economic constitutional rights, the Burger Court firmly applied the brakes and reversed course. (6) For example, in rejecting a constitutional challenge brought by recipients of welfare funds, the Burger Court concluded in Dandridge, almost two decades before DeShaney, that "the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court." (7) The Court added that "the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." (8) The Burger Court also declined to find a constitutional right to a public education, (9) shelter, (10) or abortion funding for indigent women. (11) Thus, when Judge Richard Posner stated that the United States Constitution "is a charter of negative rather than positive liberties," (12) he was not so much inciting revolution as marking the path of prior Supreme Court precedent as it marched towards DeShaney and Castle Rock.
Like the constitutions of many countries, especially those adopted after 1945, state constitutions have charted a different course. (13) Unlike their federal counterpart, state constitutions unambiguously confer positive constitutional rights. (14) "[S]tate constitutions not only provide ... negative rights, but also often include positive mandates for rights protection or government action." (15) Or, "[p]ut another way, state constitutional language mandates that states use their plenary authority in specific ways to achieve explicit and highly self-conscious policy goals." (16) Thus, while DeShaney and Castle Rock either harshly excluded or prudently liberated, depending upon one's view, federal courts from the work of interpreting positive constitutional rights, their state court brethren have neither been so limited nor relieved. Instead, state courts must confront the challenge posed by positive rights. In addressing such rights, the interpretive approaches adopted by state courts have reflected a rich diversity. But it cannot be ignored that many state courts have struggled mightily with the task.
This article focuses upon a species of state constitutional rights to which there are no federal counterparts, positive constitutional rights, and the interpretation thereof by state courts. The goal is both descriptive and normative. The article first defines what constitutes a positive constitutional right and then highlights examples in state constitutions. The article next addresses differences between interpreting state constitutions and the Federal Constitution and between interpreting positive and negative rights in state constitutions. The article then describes the various approaches state courts have taken to interpreting affirmative constitutional rights. Ultimately, the argument is advanced that there are five primary types of affirmative rights provisions in state constitutions, each of which requires a distinct interpretive approach.
I. WHAT ARE POSITIVE CONSTITUTIONAL RIGHTS?
The difference "between positive and negative rights is an intuitive one. …