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Sets out the general background and rationale for the central claim of this book, namely, that a right of every individual to an environment adequate for their health and well-being should receive express provision in the constitution of any modern democratic state. Introduces the six general lines of criticism in the order in which they will be addressed in the remaining chapters.

Argues that any state that is constitutionally committed to the recognition of human rights ought to constitutionalise a right to an adequate environment. Rebuts

the claim that constitutional provisions relating to the human right to an adequate environment should be made only in the form of a policy statement and not as a fundamental right. Rebuts the further claim that the right to an adequate environment should be placed with those rights of a second order – the ‘social rights’ – rather than among the fundamental rights of a constitution. Problematises the distinction between fundamental and social rights, but also shows why the right to an adequate environment does not resemble a social right.

This chapter examines the campaigns for constitutional rights to environmental protection. In the 1960s and 1970s, when Congress was passing landmark environmental regulations and an entire executive agency had been developed to address the subject, environmental activists continued to lobby for the insertion of positive rights to environmental protection into their state constitutions. As a result, state constitutions came to include broad rights to environmental health and protection. The chapter first provides an overview of environmental activism during the 1960s and 1970s before explaining why environmental activists targeted state constitutions despite so much environmental action at the national level. It argues that environmentalists did not choose to pursue constitutional rights to environmental protection only at the federal level. Instead, states' constitutional conventions, environmental organizations, and even legislatures continued to alter state constitutions by adding mandates for protective and interventionist government.

Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.

This chapter examines the campaigns to add education rights to state constitutions, with particular emphasis on how the common school movement was able to establish the states' constitutional duty to provide education. The leaders of the common school movement insisted that government had a moral duty to expand opportunities for children whose parents could not otherwise afford to educate them, and that state legislatures should be legally obligated to fulfill it. This movement's central claim was that the value of constitutional rights lay in their potential to promote policy changes by forcing legislatures to pass the kinds of redistributive policies they tended to avoid. The chapter considers the evidence for an American positive-rights tradition that exists primarily at the state level and discusses Congress's motive for the creation of constitutional rights as a case of entrenchment. It argues that education provisions found in state constitutions are positive rights.

This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.

This chapter examines the campaigns to add labor rights to state constitutions. The quintessential arguments about America's exceptional liberalism and its uniquely negative-rights culture have focused on the labor movement, which Louis Hartz has argued was a participant in—rather than a rival of—the dominant economic and ideological regime. The chapter first considers the labor provisions of state constitutions before discussing the ways that labor leaders and organizations influenced the drafting of new constitutions and amendments to existing constitutions. It then explains how labor rights were created not only to overturn particular court decisions, but also to preempt possible litigation. It also shows how labor organizations used constitutional rights to dictate state legislatures what they had to do while simultaneously telling courts what they could not do. The chapter demonstrates that, even in the area of labor regulation, Americans have successfully pursued the creation of positive rights.

This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims made of these rights — as natural rights, civil rights, constitutional rights — and then examines how these basic rights given institutional status and protection through the constitutional arrangements of the modern state. It argues that as a consequence of modern constitutional development, rights are no longer conceived as defining a zone of individual autonomy but are treated as objective organizational principles of constitutional ordering.

This book examines the nature and political origins of America's positive constitutional rights. It is widely assumed that constitutional rights in the United States protect people from government alone, not to mandate that government to protect them from other sorts of dangers. In other words, America is often believed to be exceptional in its lack of positive rights and its exclusive devotion to negative ones. The book challenges this conventional wisdom about the nature of America's constitutional rights by focusing on three political movements: the campaign for education rights, the movement for positive labor rights, and the push for constitutional rights to environmental protection during the 1960s and 1970s. Together, these cases demonstrate that rights movements in the United States have used state constitutions for reasons that have been largely overlooked by theories of constitutional politics.

This chapter begins with a discussion of the focus of the book, which is the provisions and amendments of the Constitution that are generally understood to grant the most important individual rights: the First Amendment, which is said to create the rights of free speech, freedom of assembly, free exercise of religion, and separation of church and state (i.e., no establishment of religion); the Second Amendment, which speaks of a right to keep and bear arms; and the Fifth and Fourteenth Amendments, which are said to give rights to due process of law and to the equal protection of the laws. It examines some specific examples of important modern constitutional controversies, which are illuminated by analyzing them in terms of appropriate limits on governmental power, rather than in terms of individual rights.

This chapter addresses differences in how the U.S. Constitution and many individual state constitutions approach the state action requirement in enforcing constitutional rights. In contrast to the U.S. Constitution, which generally requires state action as a predicate to the adjudication of constitutional rights, many state constitutions do not require the same predicate for the evolution of constitutional norms. The chapter describes the practices by which state courts have extended constitutional protections to private conduct. It grounds this generally in a framework drawn from comparative constitutionalism, and elaborates on its implications for federalism, state courts, and state constitutionalism more generally. The way state courts have developed a convergence between private and public concepts in constitutional law has important implications for the distinct path of state constitutional rights adjudication in the United States, and this chapter provides a descriptive and conceptual grounding for the phenomenon.

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.

This chapter argues that in most national legal systems, human rights ought to be recognized as constitutional rights to give them maximum protection. Moreover, they ought to be entrenched in a written constitution, but in a way that only moderately restricts change by democratic procedures. However, they ought not to be recognized as moral human rights, for this would introduce excessive legal uncertainty. In a nation without a robust tradition of respect for individual rights, they ought to be recognized as international human rights, but probably not in a nation where human rights are already strongly protected.

It is often said that the United States is the home of individual liberty and rights. But what is a “right”? What does it mean to say that someone has a “right,” or that her “rights” have been violated? This chapter shows that there are many possible answers to these questions, and that the widely accepted answers have changed substantially over the course of American history. But at the same time, today among the American people it seems that there is a fairly wide consensus about what constitutes a “right,”and what it means to have rights. The American people know what individual rights are, they know that the Constitution gives them rights, and they know that those rights cannot be taken away from them. The problem is that this consensus is fundamentally wrong.

This chapter considers another, even more controversial topic: whether the Constitution should be read to create “rights,” or impose limits on state authority (as we will see, even the proper characterization is controversial), which are not derivable from specific constitutional text. Put differently, the dispute centers over whether judges are empowered to find/recognize/create constitutional rights, constitutional limits on governmental power, and constitutional principles more generally, which are largely disassociated from specific constitutional text; and if they are so empowered, how judges are to go about this task. The chapter begins with a brief overview of how the Supreme Court has handled this issue over the years, including a summary of its important, recent decisions in areas of nontextual constitutionalism such as same-sex marriage and abortion. It then considers what light a structural approach to the Constitution might shed on these difficult and divisive questions.

This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.

Chapter 3 demonstrated that as a matter of text and history, the Bill of Rights and the Fourteenth Amendment do not create the system of individual autonomy and entitlements that much modern, constitutional discourse suggests that they do. In other words, we do not have a libertarian Constitution. Instead, our Constitution, both as originally drafted and as subsequently amended, is fundamentally a structural document, concerned with the exercise of — and limitations on — governmental power. This chapter further develops this insight, explaining why a structural vision of the Bill of Rights and the Fourteenth Amendment, one focused on limits on power, fits well with both the rest of the Constitution, and with practical realities. It also sets forth a framework regarding precisely what sorts of limits on governmental power are implied by a structural vision of the Constitution.