Vol. 26 No. 2 (June 2016) pp. 44-46
LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS, by Emily Zackin. Princeton: Princeton University Press, 2013. 234pp. Paperback $32.95. ISBN 978-0691155784.
Reviewed by Richard S. Price, Department of Political Science and Philosophy, Weber State University. Email: firstname.lastname@example.org
Those of us who study state constitutional politics and development are not infrequently asked: why? After all, real constitutional action occurs at the federal level and state constitutions are sideshows, or at least that seems to be the questioner’s assumption. A number of scholars have debunked this view by demonstrating the wealth of state constitutional experience that is far richer than many suppose (Dinan 2006; Levinson 2012; Tarr 1998; Williams 2009). Emily Zackin’s LOOKING FOR RIGHTS IN ALL THE WRONG PLACES is a terrific addition to this scholarly group. Zackin takes as her target one of the vestiges of American exceptionalism, the oft-noted fact that the U.S. Constitution lacks positive rights, rights “that require government intervention in order to protect people from threats that are no directly or solely governmental” (p. 37). While this is true, anyone familiar with state constitutions knows that this federal-centric description misses the positive rights present in most state constitutions. Simply noting this fact adds relatively little to scholarly debates. Zackin, however, goes further and seeks to explain why state constitutions contain these rights. It is this question where LOOKING FOR RIGHTS IN ALL THE WRONG PLACES adds a major contribution, not only to the American constitutional development literature but also to comparative constitutional theory.
Critics of state constitutions have long attacked their length and detailed provisions as not sufficiently “constitutional,” with constitutional being defined as the gold standard of the U.S. Constitution’s brevity and focus on great principles over idiosyncratic political concerns. Setting aside the overly romantic vision of the U.S. Constitution, these critics enjoy pulling isolated provisions out of a state constitutional text as examples of the parochial concerns of state constitution writers (see Gardner 1992). One frequent example of this so-called unprincipled constitutionalism is New York’s detailed authorization of ski trails (N.Y. Const. Art. XIV, Sec. 1). Zackin, however, reads such provisions quite differently: “Not only do these details often address issues of national salience, but their origins, while in some ways different from those of the federal Constitution, are not inherently less elevated. Indeed, the origins of these provisions highlight the ways in which state constitutions reflect their champions’ principled (and quite familiar) use of constitutions and constitutional politics” (p. 19). It turns out that the ski trails provision is of much greater principle than commonly assumed; when added in 1941, the New York Constitution contained a powerful conservationist mandate protecting the Adirondacks from development and the authors of the ski trails provision sought to carve a limited exception to the broader conservationist principle (p. 28). Where many scholars focus on the detailed nature of state constitutions limiting governmental power, Zackin warns, “we should not confuse the desire to limit legislative choices with the goal of limiting the role of government” because “state constitutions not only contain prohibitions on particular types of legislative activity, but also include mandates for legislative action” (p. 34). Zackin explores this dynamic by tracing the development of positive rights mandates in three areas: education, labor, and environmental rights.
For the sake of brevity I will only discuss Zackin’s labor rights chapter in detail. While Americans in the post-New Deal world often forget, state constitutions contain many labor provisions mandating governmental protection of workers in a variety of ways. Labor activists used the opportunity provided by constitutional [*45] conventions, or accessible amendment procedures, to entrench the importance of the right to a quality working environment (p. 117-18). Labor organizations were the driving force behind this movement and sought to elect favorable convention delegates as well as mobilizing their own membership to ratify the proposed changes (p. 121-22). The labor mobilization was “part of larger campaigns to change state policy. . . . [C]onstitutional labor provisions were understood to supplement, not substitute for, protective legislation” (p. 123). Zackin demonstrates that the labor movement pursued a sophisticated strategy and sought to achieve multiple goals through constitutional entrenchment. Courts were a key goal of this movement, just not in the way that many assume rights provisions work. Rather than seeking to empower courts to restrain abusive legislatures, the labor movement sought to constrain and overturn courts directly. Simply altering courts through elections, as the labor movement also strove to achieve, still left the movement’s legislation vulnerable but changing state constitutions insulated the movement’s legislative victories. Beyond directly reversing unfavorable decisions, the movement also sought to preempt litigation before it occurred by reducing the constitutional arguments available to attack labor laws (p. 123-33). While this could not overcome hostility in federal courts, labor rights provisions offered substantial protections against state legal challenges and state courts were the most frequent sites of contestation (p. 134-38). The movement for positive labor rights provisions served additional purposes as well. Importantly, Zackin argues that the labor movement used labor provisions to force legislative action on its agenda. Legislatures that had been reluctant to embrace innovations in employment law and regulation faced added pressure from the successful ratification of labor provisions (p. 138-41). This goal serves to underline the fact that constitutions may simultaneously restrict governmental power while also authorizing and legitimizing that power. Finally, the campaign for constitutional labor rights protections served to further build the labor movement (p. 141-43). This necessarily brief summary hardly does justice to the nuances of Zackin’s account of the labor movement, let alone her equally stimulating account of education and environmental activists.
This brings us back to the key strength of Zackin’s work: the value added to comparative constitutional development theory. To simplify (perhaps too much) a complex literature, many scholars argue that constitutional rights entrenchment is a function of elite rationality; that faced with the potential or reality of losing political power, elites use constitution writing to entrench their preferred policies, empowering judiciaries to protect the soon to be powerless former elite from new political forces (Ginsburg 2003; Hirschl 2004). Zackin’s account not only undermines the American exceptionalism trope that the U.S. is unusual in lacking positive rights, it demonstrates that this powerful theory of constitutional development fails to explain why these rights exist. Political elites failed to play a prominent role in the entrenchment of all three rights Zackin examines and, in fact, the primary force for change came from outsiders who lacked the power to overcome entrenched elites in traditional politics. As the labor example shows, these outsiders took advantage of the relative openness of state constitution making to shape the governing structure to their goals as a way to overcome elite power. Thus, in sum, Zackin not only incorporates subnational constitutionalism into our knowledge of American constitutional development, she builds a bridge to comparative constitutional studies as well. LOOKING FOR RIGHTS IN ALL THE WRONG PLACES demonstrates the importance of scholars exploring all American constitutions when they seek to make broad generalizations about American constitutionalism.
Dinan, John J. 2006. THE AMERICAN STATE CONSTITUTIONAL TRADITION. Lawrence, KS: University Press of Kansas.
Gardner, James A. 1992. “The Failed Discourse of State Constitutionalism.” MICHIGAN LAW REVIEW 90 (February): 761-837. [*46]
Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES. New York: Cambridge University Press.
Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.
Levinson, Sanford. 2012. FRAMED: AMERICA’S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE. New York: Oxford University Press.
Tarr, G. Alan. 1998. UNDERSTANDING STATE CONSTITUTIONS. Princeton: Princeton University Press.
Williams, Robert F. 2009. THE LAW OF AMERICAN STATE CONSTITUTIONS. New York: Oxford University Press.
© Copyright 2016 by author, Richard S. Price