Mises Wire

Federal Judges Co-Opted America’s State Constitutions

The idea that the federal Bill of Rights is the only thing standing between freedom and tyranny in America is deeply ingrained in the American mind. It is ubiquitous in our speech, for instance, as can be seen in how we use phrases like “my Second Amendment rights” or “I want to plead the Fifth [Amendment].” It is also assumed that unless the federal Supreme Court has intervened to declare that a legal right exists, then the right is virtually non-existent within the American legal system. Moreover, it is assumed that unless the federal supreme court mandates that state and local governments respect certain rights, then state and local governments will wantonly disregard the rights of their citizens. Put more bluntly, we are repeatedly told that the federal constitution protects your rights, but state constitutions don’t. 

Underlying all this is a powerful narrative that “progressives” and the Left have long aggressively pushed: that state governments and state constitutions are unconcerned with human rights and American legal rights. Thus, in the debate over secession, for example, centralist critics of secession have claimed that without oversight from the federal courts, there would be “barely a right to vote“ and that state governments would “shrug off“ legal protections of the right to free speech. 

In other words, the US constitution and its bill of rights are regarded in popular discourse as the font from which all legal rights flow. 

But even among mainstream legal scholars, this is an extreme view. As legal scholar Ronald K.L. Collins put it in 1981:

There is a popular misconception that a case of constitutional dimension is not final until passed upon by the United States Supreme Court. It is also commonly thought that in order for a doctrine of constitutional law to prevail, it must at least be recognized somewhere on the pages of the United States Reports

Moreover, it is thanks to this narrative that state constitutions and state bills of rights—which often protect property rights and procedural rights more explicitly and extensively than the federal bill of rights—are treated as if they don’t even exist. 

This is exactly how the regime wants it. The wholesale turn to federal courts has essentially turned state supreme courts and state constitutions into mere appendages of the federal courts who, it is generally presumed, are the only courts with anything important to say about “constitutional rights” in the United States. Moreover, this trend has gone a long way toward erasing political decentralization and federalism in the United States. If all state and local laws are subject to a veto from the federal Supreme Court, then state sovereignty has de facto ceased to exist. If it is the prerogative of the federal courts to ensure uniformity among state and local laws, then the entire concept of a decentralized confederation fostering diverse “laboratories of democracy“—to use Louis Brandeis’s phrase—is nothing more than myth. 

Rather, by co-opting all state constitutional rights with a single scheme of federally defined rights, the federal government has ensured that US member states do not really exist as distinct legal entities. 

Why State Constitutions Faded into the Background 

In the early United States, debates over constitutional rights were centered on state constitutions, but the state bills of rights were gradually supplanted by the federal constitution and federal judges. 

Paul Hudnut notes in the Denver University Law Review that 

In the early days of the American Republic, only state constitutions, and the rights guaranteed thereunder, protected citizens from actions by state governments. These state constitutional rights preceded the federal Constitution ... [T]he federal Bill of Rights was based on provisions of earlier state constitutions and limited only the powers of the new federal government. 

This changed after the “ratification” of the Fourteenth Amendment to the US constitution, as federal courts applied more and more of the federal bill of rights to state legal matters. Hudnut notes that “[a]s federal constitutional rights were expanded and made applicable to the states, state constitutional protections fell into disuse.” In the debate over legal rights, state constitutions came to be seen as unnecessary and thus, Hudnut concludes 

with the expansion of federal rights, the attention of litigants, commentators and law schools was on the federal Constitution, and state constitutions were viewed as redundant sources of constitutional protection. As a result of these factors, state constitutional rights were overshadowed by federal constitutional rights...”

The situation became so lopsidedly centered on federal law that even leftwing Supreme Court Justice William Brennan—who certainly favored federal supremacy—felt it was problematic. Brennan admitted in 1977 that “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”

As a SCOTUS judge, his opinion on the matter sparked new interest in state constitutions, but he was certainly not the first to notice how state constitutions had virtually “disappeared.” Legal scholar Monrad G. Paulsen had written in 1951, for example, that: 

State court decisions and state constitutional materials are too frequently ignored by both commentator and counsel when civil liberties questions arise. State constitutions furnish extensive and sometimes unique materials which can help in the protection of human liberties...” 

What Do State Constitutions and Bills of Rights Actually Say?

There is no doubt that, at least according to the usual mainstream narrative, state constitutions are today indeed “overshadowed” and certainly considered by most regime supporters to be inadequate. 

But what do state constitutions actually say? Is it true that without federal judges’ rulings that Americans would have “barely a right to vote”? Without the federal bill of rights, would most of our legal rights vanish?

To answer this question, let’s engage in a thought experiment. Let’s imagine that the federal government and federal Bill of Rights disappeared overnight and we are only left with state constitutions and the legal rights they outline. 

If we then actually look at these state constitutions, we find a wide variety of legal rights that are explicitly stated—from rights to free speech and religion, to the right to bear arms. Indeed, some provisions in state constitutions suggest that state constitutions are far more limiting on state power than the federal bill of rights. 

Or, as stated by Jessica Bulman-Pozen and Miriam Seifter in the Columbia Law Review in 2023, “In contrast to the spare enumeration of rights in the federal Constitution, state constitutions contain plentiful individual rights.” 

Let’s look at some more specifics. On the matter of voting for example, it turns out that the “pro-democracy” factions can rest easy because, according to Bulman-Pozen and Seifter in the Yale Law Journal:

every state constitution guarantees an affirmative right to vote, and the vast majority recognize numerous other democratic rights, from the right to participate in free and equal elections, to the right to alter or abolish government. These guarantees have been central to the state constitutional project of self-governance from the start.

Or, as Caroline Sullivan writes in the center-left Democracy Docket: “In contrast to the federal Constitution, state constitutions are significantly more explicit in conferring the right to vote and include additional protections for free, equal and open elections.”

It seems that there will be a lot of voting taking place in American states even if all the federal courts and judges disappeared. 

Voting, of course, is a procedural, legal right, and not a natural right. But what about very fundamental natural rights such as the right to bear arms? This right is also more explicitly in most state constitutions than in the federal Bill of Rights. Eugene Volokh has compiled these provisions, he shows that only in six states is there no explicit provision protecting the right to bear arms. Most of these “no provision” states are the states you’d expect, like New York and California. In some cases, however, states with no explicit constitutional provisions are nonetheless states with plenty of private gun ownership. In Iowa, for example, the right to bear arms is protected in statute. Moreover, in the overwhelming majority of states, constitutional provisions explicitly protect the right to self-defense using firearms. This is certainly more than we can say about the federal Second Amendment. 

Another natural right, of course, is the right to free speech. Do state constitutions provide any legal protections here? 

Yes. The right to free speech is extensive among state constitutions. According to the Free Speech Center at Middle Tennessee State University: “Today all of the states have provisions in their constitutions that protect these or similar rights, and in some cases offer greater protection for speech, press, and assembly rights than those based on the U.S. Constitution.”

It seems without the federal First Amendment, Americans would still be free to say things and peacefully gather. As far as freedom of religion goes, state constitutions contain a multitude of provisions. 

As Paulsen notes,

Various state constitutions not only guarantee freedom of worship but also specifically prohibit a religious test for holding public office, for the competence of witnesses, for voting, for study or teaching in the public schools, for the enjoyment of “any civil or political right, privilege or capacity.” Some constitutions provide exemption from service in the militia for those who religious convictions do not permit the bearing of arms.

These latter provisions are clearly an improvement on the federal bill of rights. Many American conscientious objectors throughout American history would have been better off under these state provisions than under the federal constitution which has never stopped federal judges from imprisoning conscientious objectors

Returning to procedural and legal rights, we can look to the right of trial by jury—an ancient legal right dating to well before the Magna Carta. The right to a jury trial, it seems, is well entrenched within state constitutions. According to Pierre H. Bergeron at the University of Cincinnati College of Law:

Most state constitutions include language preserving the jury trial right, typically declaring it to be “inviolate” — [a] pretty expansive protection. While some state constitutions do place certain limits on the “inviolate” right (such as anchoring it to claims existing at common law at the time of the constitution’s adoption), most don’t. And if you dust off the debates around the time of the adoption of many state constitutions, it’s not difficult to find proponents of the jury right explaining how important and central it is, particularly as a check on the other branches of government.

Unfortunately, the right to a trial by jury has been losing strength over the past century. This, Bergeron notes, has its origins in federal jurisprudence where federal judges have been chipping away at the right to trial by jury for a very long time. Moreover, the federal constitution has never protected a right to juries in civil cases. Only state constitutions do that. Bergeron suggests that the way to restore full respect for jury trials lies through state constitutions, not the federal one. 

The greater respect for juries in state constitutions can also be seen that only state constitutions contain any provisions protecting the autonomy of juries in employing jury nullification. While the US Supreme Court explicitly ruled against jury nullification in 1895, more than twenty states contain some language protecting jury nullification in at least some cases. (Unfortunately, at both the state and the federal level, judges and prosecutors have conspired to prevent practical usage of these provisions. State constitutions, like the federal constitution, are at the mercy of pro-regime interpretation by judges.)

There are, of course, too many rights—both natural and legal—to list here in any comprehensive manner. That, of course, is what the Ninth Amendment was supposed to be for. The Ninth is the amendment has states the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is, just because a specific right is not listed in the text does not mean it doesn’t exist. 

The Ninth Amendment, of course, has been almost totally ignored by the US Supreme Court and federal judges in general. Many state constitutions, however, take the concept of “unenumerated rights” much more seriously. As Anthony Sanders writes for the Institute for Justice

[S]cholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, however, things are much clearer when it comes to state constitutions. Two-thirds of state constitutions have equivalent provisions, or “Baby Ninth Amendments,” worded similarly to the Ninth Amendment. 

In spite of all this, the standard narrative in American schools and political institutions remains one in which only the federal government “protects” our rights in the face of abusive and indifferent state governments. According to the federal narrative that has dominated for the past century, the enlightened federal judges, armed with the uniquely exemplary federal bill of rights, are unrivaled in their concern for the rights of all Americans. 

In truth of course, no group of judges—state, federal or otherwise—can be trusted to stand against their respective regimes in favor of ordinary people. Nor is any written constitution sufficient to protect us from abuse at the hands of a regime. One the other hand, written texts are not nothing, and it is clear that the texts of many state bills of rights are simply better than the federal text, which was only meant to be applied to the federal government. Moreover, it is best to very skeptical when a central regime insists that it is the only enlightened arbiter of law—while the constitutions and judges of “the provinces” are said to be the real despots. The opposite is at least as likely to be true.

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