Looking for Rights in All the Wrong Places: Why State Constitutions Contain?America's Positive Rights (Princeton Studies in American Politics: ... and Comparative Perspectives): 132 - Softcover

Zackin, Emily

Softcover

ISBN 10: 069115578X ISBN 13: 9780691155784

Publisher: Princeton University Press, 2013

Synopsis

Unlike many national constitutions, which contain explicit positive rights to such things as education, a living wage, and a healthful environment, the U.S. Bill of Rights appears to contain only a long list of prohibitions on government. American constitutional rights, we are often told, protect people only from an overbearing government, but give no explicit guarantees of governmental help. Looking for Rights in All the Wrong Places argues that we have fundamentally misunderstood the American rights tradition. The United States actually has a long history of enshrining positive rights in its constitutional law, but these rights have been overlooked simply because they are not in the federal Constitution. Emily Zackin shows how they instead have been included in America's state constitutions, in large part because state governments, not the federal government, have long been primarily responsible for crafting American social policy. Although state constitutions, seemingly mired in trivial detail, can look like pale imitations of their federal counterpart, they have been sites of serious debate, reflect national concerns, and enshrine choices about fundamental values. Zackin looks in depth at the history of education, labor, and environmental reform, explaining why America's activists targeted state constitutions in their struggles for government protection from the hazards of life under capitalism. Shedding much-needed light on the variety of reasons that activists pursued the creation of new state-level rights, Looking for Rights in All the Wrong Places challenges us to rethink our most basic assumptions about the American constitutional tradition.

About this title

About the Author

Emily Zackin is assistant professor of political science at Hunter College, City University of New York.

From the Back Cover

"Emily Zackin argues that the United States has a long history of positive rights protection, created and fostered by political outsiders who wanted to change society and disrupt the status quo. We will find this tradition not in the federal constitution, but in our country's many state constitutions. This is a crucially important book revealing an unjustly neglected feature of America's constitutional traditions."--Jack M. Balkin, Yale Law School

"Zackin has written a major challenge to conventional wisdom that American constitutionalism is committed to negative rights only. Her exceptional research and analysis has resulted in a work that will be both a classic of American state constitutionalism and American constitutional development."--Mark Graber, University of Maryland

"This is an extremely important book that will be widely discussed. One of the pathologies of the standard approach to American constitutionalism is its exclusive focus on the U.S. Constitution and the concomitant ignorance of the rich materials to be found in the literally dozens of American state constitutions. This book will be an extremely important wake-up call for most readers."--Sanford Levinson, author of Constitutional Faith

"This splendid book single-handedly establishes positive rights as core elements of the American constitutional tradition. Using a comparative case study of rights in education, labor, and the environment, Zackin overturns conventional wisdom by documenting a rich legacy of positive rights in state constitutions. Looking for Rights in All the Wrong Places is provocative, important, and persuasively argued."--Charles R. Epp, author of Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State

Excerpt. © Reprinted by permission. All rights reserved.

Looking for Rights in All the Wrong Places

WHY STATE CONSTITTIONS CONTAIN AMERICA'S POSITIVE RIGHTS

By EMILY ZACKIN

PRINCETON UNIVERSITY PRESS

Copyright © 2013 Princeton University Press
All rights reserved.

ISBN: 978-0-691-15578-4

Contents

Acknowledgments............................................................
vii
Chapter 1 Looking for Rights in All the Wrong Places......................
1
Chapter 2 Of Ski Trails and State Constitutions: Silly Details or Serious 
Principles?................................................................
18
Chapter 3 Defining Positive Rights........................................
36
Chapter 4 Why Write New Rights?: Understanding Constitutional Development 
Apart From Entrenchment....................................................
48
Chapter 5 Education: A Long Tradition of Positive Rights in America.......
67
Chapter 6 Workers' Rights: Constitutional Protections Where (and When) We 
Would Least Expect Them....................................................
106
Chapter 7 Environmental Protection: Positive Constitutional Rights in the 
Late Twentieth Century.....................................................
146
Chapter 8 Conclusion......................................................
197
Bibliography...............................................................
215
Index......................................................................
229

Excerpt

CHAPTER 1

Looking for Rights in All the Wrong Places

* * *

On January 15, 1870, Illinois's third constitutional convention had beenunder way for just over a year, and an experienced coal miner namedGeorge Snowden wrote a letter to one of its delegates. In it, he explainedthat his poor health had prevented him from writing sooner, but that inreading a newspaper account of the constitutional convention, he wasmoved to communicate with its members. He wrote, "as a miner, I thoughtit but proper that the miner's interest ought to be considered in that convention.I do not know that it is right in a legal sense, but I know it will do noharm for you to consider what the miners ought to have as their rights—eitherin the convention or in the legislature." He went on to detail theprotections that the miners "ought to have as their rights," listing specificregulations like requirements for ventilation and escapement shafts in coalmines, the mandatory presence of mining inspectors, and laws compellingmine owners to pay damages to injured miners.

Snowden might well have been pleased by the outcome. The new stateconstitution established the duty of the state legislature to enact several ofthe safety regulations he listed, and thereby obligated government to protectthe state's miners from the dangerous conditions in which they were forcedto work. Illinois's miners had, in fact, been organized to demand this kindof protection for some time, but had not been able to secure the protectiveregulations they sought from the state's legislature. After a decade of trying,they turned to the state's constitutional convention, where they successfullysecured this constitutional right to governmental protection from the particularlydangerous features of work in the mines.

Of course, when most people think about America's constitutional rights,they do not think about miners or about Illinois law. Instead, they thinkabout the U.S. Constitution, its Bill of Rights, and the Supreme Court opinionsthat have shaped its meaning. Studies of the federal Constitution andthe changes in its meaning have dominated discussions about American constitutionallaw. As a result, most accounts of American constitutional rightsdescribe these rights as limitations on the scope of government. Americanrights, we are often told, protect their bearers from tyrannical governmentby forcing government to restrain itself from intervening in social and economiclife. They do not mandate more government or offer protection fromthreats that do not stem directly from government itself. While other nationshave constitutional rights to an active, welfarist state, often known as positiverights, constitutional rights in the United States are often thought toprotect people from government alone, not to mandate that governmentprotect them from other sorts of dangers. In other words, America is widelybelieved to be exceptional in its lack of positive constitutional rights and itsexclusive devotion to negative ones. But how accurate is this conception?

As I will demonstrate, the conventional wisdom about the nature ofAmerica's constitutional rights is incomplete, and therefore incorrect. Theproblem is not that scholars have misinterpreted the federal Constitution orits history, but that most observers have taken the history of the federalConstitution and the federal Supreme Court to be the only one, or the onlyone worth considering. They have leapt effortlessly, and indeed unconsciously,from the assertion that the federal Constitution lacks positive rightsto the claim that America lacks positive rights, at least at the constitutionallevel. It is this error that I endeavor to correct.

The texts of state constitutions force us to question the ubiquitous assertionsthat America lacks positive constitutional rights. Illinois was not alonein creating constitutional rights to interventionist and protective government,nor was this provision for miners the only positive right it created.Throughout the nineteenth and twentieth centuries and across the UnitedStates, activists, interest groups, and social movements championed positiverights, and built support for their inclusion in state constitutions. As a resultof these political campaigns, state constitutions have long mandated activegovernment intervention in social and economic life, and have delineated awide array of situations in which government is not only authorized, butactually obligated to intervene. State constitutions contain many differentkinds of mandates for interventionist and protective government, not onlywith respect to laborers, but also with respect to government's obligationsto care for the poor, aged, and mentally ill, preserve the natural environment,provide free education, and protect debtors' homes and dignity.

This book focuses on three political movements to add these kinds ofpositive rights to state constitutions. In particular, it examines the campaignfor education rights, which spanned the nineteenth and twentieth centuries,the movement for positive labor rights, which occurred during the GildedAge and Progressive Era, and the push to add environmental bills of rightsto state constitutions during the 1960s and 1970s. Together, these casesserve to highlight not only the historically and geographically contingentvariations in the form and function of America's positive rights tradition,but also its extraordinary length. The arguments and political calculationsof the three rights movements I examine displayed remarkable continuityacross diverse issue areas, vast geographic distances, and entire centuries. Itis in this recurrent recourse to constitutional politics, along with the textualprovisions in state constitutions, that I identify a sustained positive-rightstradition.

State-level organizations' own descriptions of their views and goals providecompelling evidence for the existence of a coherent rights tradition.The leaders of each constitutional movement maintained that government'sobligation to protect its people was too important to remain optional, andthe protections they sought were too critical to leave at the mercy of legislativediscretion. They insisted that the most salient threat to society was nottoo much government, but too little, and that constitutional law ought notonly restrain government, but also force it to provide substantive protections.Many of the organizations that championed positive constitutionalrights explained their understanding of the provisions they sought and oftheir political context through newspapers, newsletters, and internalmemos. Their champions also made stirring arguments on behalf of theserights on the floor of states' constitutional conventions and in academicjournals. Yet because they exist at the state level, these sustained and often-successfulcampaigns for positive constitutional rights have been widelyoverlooked.

This study also sheds new light on the origins of constitutional rights.Most accounts of rights' creation, both within and outside the United States,hold that dominant political coalitions write new rights into constitutionswhen (and precisely because) they are worried about losing their dominantpositions. On this account, movements for new rights are fundamentallyconservative projects, intended to maintain the status quo. However, theorigins of the positive rights in state constitutions are quite different. Likethe Illinois miners who campaigned for constitutional protections, manypositive-rights' advocates did not intend to crystallize existing political arrangements.Instead, these activists hoped to rewrite the rules of politics andtransform their societies. In the chapters that follow, I demonstrate thatrights movements in the United States have used state constitutions for reasonsthat theories of constitutional politics have tended to miss. I also arguethat constitutional theorists have largely overlooked the positive rights thatthese movements created.

American Constitutional Exceptionalism

American constitutional law is often said to be exceptional in its lack ofrights to governmental protection from social and economic privation.While many other nations' constitutions enshrine positive rights, which obligatethe state to intervene in order to protect citizens from nongovernmentaldangers, American rights are often thought to be negative rights, protectingcitizens only from intrusive government by prohibiting governmentalintervention. In other words, the U.S. Constitution appears to be dedicatedexclusively to limiting the scope of government and to keeping governmentout of the lives of its citizens. Thus, assertions about America's exceptionalconstitutional rights are still very much the norm.

America's political development was once thought to be similarly unusual.When compared with Europe, the industrializing United States appearedexceptional in its lack of protective social and economic regulations,and its citizens seemed to evince a strong and unusual aversion to government.Thanks in large part to historical studies of state and local governance,this story about American political development has been dramaticallyrevised and this version of American exceptionalism widely rejected.Few scholars would still endorse the idea that America's political developmentwas exceptional in its lack of governance. The resemblance betweenthe outdated theory of American exceptionalism and the current theory ofAmerican constitutional exceptionalism should give us pause, and shouldprompt us to ask whether the standard view of America's constitutionaltradition may also require revision.

Of course, the idea that America's constitutional tradition is exceptionalis grounded in considerable empirical analysis. There is indeed strong evidencethat the American constitutional tradition is exceptionally hostile topositive rights. While many prominent political figures, including severalU.S. presidents, have argued on behalf of positive rights, few (and arguablyno) positive-rights claims have ever changed either the U.S. Constitution'stext or the Supreme Court's interpretation of it. Thus, America's welfarestate is widely believed to consist of statutory law alone, and is generallyunderstood as a matter of legislative and majoritarian choice, rather thanconstitutional obligation.

Even the dramatic expansion of the United States' social safety net duringthe New Deal seems to confirm the assessment. In the wake of the GreatDepression, Franklin Roosevelt explained, government must take activesteps to protect citizens from economic and physical risk in order for themto take advantage of America's traditional political liberties. He argued theConstitution's negative liberties were only meaningful under conditions ofeconomic security, and listed the social and economic safeguards that mustundergird the political liberties contained in the Bill of Rights. This list,which Roosevelt named the "Second Bill of Rights," included rights to housingand medical care and protection from unemployment and hunger.However, to the degree that these governmental commitments to social welfarebecame a part of federal policy, it was through statutory programs, likeSocial Security and Medicare. To be sure, many of these protective policieshave engendered enduring political support, and as a matter of practicalpolitics, the statutes that embody them may be quite difficult to repeal.However, the positive-rights claims underlying New Deal policy were neverconstitutionalized through a formal amendment to the text of the Constitutionor through changes in Supreme Court doctrine. Absent a constitutionalmandate, Congress remains free to scale back or eliminate any statutoryentitlement program that becomes unpopular, as it did with Aid to Familieswith Dependent Children (AFDC) in 1996.

Hoping to find a constitutional mandate for a more robust welfare statethan the one that is already embodied in statutory law, several litigationmovements have looked to the Fourteenth Amendment. Yet these movementshave met with extremely limited success, and the Supreme Court hasgenerally declined to read either the Equal Protection or Due Process clauseas a mandate for active government intervention. To be sure, several landmarkcases seem to imply or contain a positive-rights reading of the FourteenthAmendment, but these decisions have not served as the foundationfor any more extensive positive-rights jurisprudence, and the Court has explicitlyrejected the positive-rights reading in its subsequent cases. Instead,the Court has consistently ruled that protective and redistributive policiesare questions of majoritarian choice, not matters of constitutional duty.Government may well choose to protect citizens from the threats that do notstem directly from government. However, the Court has been quite explicitin its repeated determination that the U.S. Constitution imposes no obligationfor it to do so. Thus, most observers agree that even if the U.S. Constitutionought to be read differently or might have been interpreted in anotherway, it is not currently understood to contain positive rights. Indeed, campaignson behalf of positive constitutional rights seem to have fizzled withoutever gaining significant traction in either a court of public opinion orlaw. Even one of the nation's most prominent welfare-rights advocates,who, in the 1960s, pioneered the case that the Constitution contained justiciablewelfare rights, has begun to argue that the U.S. Constitution may actuallylack these rights. This view of American constitutionalism has, quiteunderstandably, given rise to the argument that America's constitutionaltradition is distinct from those of other industrialized nations.

Assertions about America's constitutional exceptionalism are commonplace.For instance, noted law professor Cass Sunstein has declared that"the constitutions of most nations create social and economic rights,whether or not they are enforceable. But the American Constitution doesnothing of the kind." He goes on to ask, "Why is this? What makes theAmerican Constitution so distinctive in this regard?" Many scholars haveanswered this question with classically exceptionalist tropes, particularlywith reference to America's unique political culture. For instance, prominentconstitutional scholar Frederick Schauer writes, "American distrust ofgovernment is a contributing factor to a strongly libertarian approach toconstitutional rights. The Constitution of the United States is a stronglynegative constitution, and viewing a constitution as the vehicle for ensuringsocial rights, community rights, or positive citizen entitlements of any kindis ... highly disfavored." Other theorists have followed suit, opining that"the constitutionalization of positive rights will not occur absent a shift inAmerica's classically liberal political culture." Andrew Moravcsik has writtenthat, while he doubts that such abstract cultural differences can, on theirown, explain divergent policy outcomes, "Americans [do] tend to shy awayfrom state intervention to redress social inequality—now established inmost advanced industrial democracies as the primary fiscal task of the state.The aversion to state intervention is a distinctively American trait as comparedto the political cultures of other advanced industrial democracies."

Other explanations for America's divergent constitutional developmentnot only hold its distinct constitutional culture responsible, but explain thatcultural difference with reference to America's unusual history. For instance,Dieter Grimm, a law professor and former Justice on the Federal ConstitutionalCourt of Germany, has argued that the different nature of America'srevolution accounts for the difference in its constitutional rights. He explains,"The American colonists lived under the English legal order, yet withoutthe remnants of the feudal and the canon law still alive in their motherland... Colonists referred to natural law as the true source of fundamentalrights in order to justify the break with the motherland ... To fulfill thisfunction negative rights were sufficient." Americans' lack of experiencewith feudalism endowed them with a distinct political and legal culture.Thus, Grimm argues that negative rights continue to characterize the Americantradition, while Europe has taken a very different course, and concludesthat "the contrast seems deeply rooted in different historical experiences;different perceptions of dangers; different trusts in the state on the one hand,the market on the other; different ideas about the role of political and legalinstitutions; a different balance between individual freedom and communalinterest." In other words, individual freedom from governmental control,the desire to keep government at arm's length, to protect people and particularlytheir property and economic arrangements from state power distinguishAmerica's constitutional tradition from Europe's.

Not So Exceptional After All

Arguments about America's exceptional rights tradition will be immediatelyrecognizable to those familiar with the broader theory of Americanexceptionalism. Scholars of American politics were once widely agreed thatAmerican political development was notably aberrant. While Europeancountries developed strong, centralized welfare states as they industrialized,nineteenth-century America appeared virtually stateless and notablylacking in welfarist bureaucracies. Americans' deep suspicion of governmentand their single-minded devotion to the protection of private propertywere often used to explain America's divergent political path. As wehave seen, the conventional wisdom about America's constitutional traditionstill echoes with these exceptionalist tropes about Americans' unusualhistory, their resulting fear of government, and their conspicuous differencefrom the rest of the world.

(Continues...)

(Continues...)

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Edition details

• Publisher: Princeton University Press
• Publication date: 2013
• Language: English
• ISBN 10: 069115578X
• ISBN 13: 9780691155784
• Binding: Paperback
• Number of pages: 248