This article examines state-level contests over the definition of rights. While the U.S. Supreme Court has established a floor of rights that all states must observe, states can expand rights beyond federal minimums. During the past four decades, courts in several states have developed expansive definitions of rights in hotly contested areas including capital punishment, criminal procedure, racial desegregation, abortion, free speech, education equalization, non-establishment of religion, non-discrimination on the basis of sexual orientation, and marriage for same-sex couples. Many of these decisions have endured and substantially reshaped the law. Others, however, have been reversed through state constitutional amendments. This article documents these patterns of conflict and concludes that the controversial state-level practice of popular referendums on contested rights provides important benefits, including increasing the legitimacy of new rights and reducing popular pressure for removal of judges.
The short span between the 1960s and early 1970s was a time of transition in American constitutional law. As Chief Justice Earl Warren and other champions of liberal judicial activism left the U.S. Supreme Court, they were replaced by nominees of a President committed to "strict construction" of the Constitution and its rights guarantees. (1) Many liberals feared that the reconstituted Supreme Court would abandon its commitment to the expansion of individual and minority rights. (2) Seeking to sustain the Warren-era rights revolution, they turned in an unlikely direction--the states. (3) For years, many liberals had viewed the states as constitutional backwaters, (4) but some state judges were in fact eager to carry on the Warren Court's rights-expanding legacy. Starting in the 1970s--with great intentionality--several state courts began invoking formerly dormant state constitutional rights provisions in ways that broadened rights beyond federal constitutional minimums. (5) For the past four decades, this movement, known as the "new judicial federalism," (6) has transformed constitutional law as state judges have established new state constitutional rights in areas such as capital punishment, criminal procedure, equalization of public school funding, racial desegregation, abortion, free speech, non-establishment of religion, non-discrimination on the basis of gender or sexual orientation, and legal recognition of same-sex unions.
The rights revolution in state constitutional law has generated both praise and criticism. Many lawyers, judges, and legal academics, fully immersed in a rights-honoring legal culture, have celebrated the expansion of rights at the state level. They contend that the movement has bestowed a double benefit: while achieving the good of expanding individual rights, it also has promoted the separate, independent good of revitalizing federalism. (7) According to this view, the movement's focus on state constitutional texts has breathed life into these documents and established a dialogue between the U.S. Supreme Court and the states regarding the proper understanding of individual rights and liberties. (8) Critics, however, have argued that the new judicial federalism is less concerned with creating a distinctive state constitutional jurisprudence than in achieving a liberal agenda of expanding certain preferred rights claims by any available means. (9) The emergence of an independent state constitutionalism, in this view, "constitution shopping" has merely provided activists a vehicle for and re-litigating rights cases whenever they lose in the federal courts. (10)
As state courts have recognized new and controversial rights claims, citizens have sometimes pushed back. One democratic check on state courts is judicial election, available in some form in most states. (11) Voters have occasionally used judicial elections to reconstitute state courts they consider activist--most notably in California in the mid-1980s and Iowa in this decade. …