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Looking for Rights in All the Wrong Places

Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights

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  • Book Info
    Looking for Rights in All the Wrong Places
    Book Description:

    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 Placesargues 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 Placeschallenges us to rethink our most basic assumptions about the American constitutional tradition.

    eISBN: 978-1-4008-4627-6
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-xii)
  4. CHAPTER 1 Looking for Rights in All the Wrong Places
    (pp. 1-17)

    On January 15, 1870, Illinois’s third constitutional convention had been under way for just over a year, and an experienced coal miner named George Snowden wrote a letter to one of its delegates. In it, he explained that his poor health had prevented him from writing sooner, but that in reading a newspaper account of the constitutional convention, he was moved to communicate with its members. He wrote, “as a miner, I thought it 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...

  5. CHAPTER 2 Of Ski Trails and State Constitutions: SILLY DETAILS OR SERIOUS PRINCIPLES?
    (pp. 18-35)

    When you read state constitutions, it can sometimes seem that the people who wrote them must have failed to grasp the purpose and the nature of constitutional law. State constitutions do contain declarations of guiding principles and outline the basic structures of state government, but in most cases, these recognizably constitutional features are surrounded, even engulfed, by hundreds of mundane administrative details. As theNew York Timesput it, for example, the “great phrases [of New York’s constitution] all but drown in the fine print.” For example, the article pointed out, the state constitution even concerns itself with the construction...

  6. CHAPTER 3 Defining Positive Rights
    (pp. 36-47)

    Environmental activists of the 1960s and ’70s routinely insisted that constitutional law ought to do more than simply restrain the state. They wanted government to protect people from corporations that were polluting the air and water, threatening their health, and impeding their ability to enjoy the natural world. They warned that if government did not actively intervene to prevent the degradation of the natural environment, there would be no open spaces, no clean air or water left, and that people would sicken and die. Government, they explained, should be forced into action to protect Americans from this calamity.

    Almost a...

    (pp. 48-66)

    In the previous chapters, I argued that state constitutions embody popular commitments to an active, interventionist, and protective state. Thus, the study of these constitutions helps us to make better inferences from American rights to American ideals. To read constitutions only as mirrors of norms and values, however, is to miss the way in which constitutions are also political documents, crafted in the midst of ongoing battles for control of government policies, and modified by groups of people hoping to gain an advantage in those struggles. Because the conflicts that shape constitutions are often about fundamental political commitments, these documents...

    (pp. 67-105)

    The Supreme Court has ruled unequivocally that “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution.”² States, however, have always played a far larger role than the federal government in the provision of public education, and it is state constitutions that contain explicit education rights. In fact, every state constitution currently contains at least one constitutional provision regarding public education. The Massachusetts constitution required the state to promote education nearly a decade before the U.S. Constitution was drafted.³ As state governments built public school systems over the course of the nineteenth century, the organizations...

    (pp. 106-145)

    In the previous chapter, I argued that America has positive constitutional rights to education. In light of these positive education rights, it is surely mistaken to characterize American rights as exclusively negative and America’s constitutional tradition as exceptional in this regard. Yet the case of education may be a particularly easy one. Perhaps education is, itself, the exception to American exceptionalism. It seems quite possible that even America’s liberal hegemony might point toward active government where children are concerned. After all, the idea that people’s opportunities should not be circumscribed by the circumstances of their birth might be said to...

    (pp. 146-196)

    The education rights in state constitutions establish that even before the Civil War, American constitutions contained positive rights. The labor rights in state constitutions demonstrate that Americans have ratified positive constitutional rights even in a realm of social and economic life that is often said to be dominated by classical liberalism. Environmental rights are instructive neither because they are very old nor because they address an area of American life in which we might least expect to find positive rights, but because they emerged at a time when we would least expect environmentalists (or any activists) to have cared about...

  11. CHAPTER 8 Conclusion
    (pp. 197-214)

    This book began by introducing the widespread idea that American’s rights are different from everyone else’s, and that the U.S. Constitution testifies to the exceptionally anti-statist nature of Americans’ political commitments. As we have seen, this assessment of American rights and political culture cannot withstand the serious study of state constitutions. Indeed, when we include state constitutions in our view of American constitutionalism, many successful movements for positive constitutional rights become immediately apparent. These positive rights were by no means as widely embraced or strongly enforced in America as they might have been. However, the lengthy and enduring American practice...

    (pp. 215-228)
  13. INDEX
    (pp. 229-234)
  14. Back Matter
    (pp. 235-238)