First Line of Defense: A Blueprint for State Constitutional Litigation to Expand Freedom

For decades, groups seeking to protect individual rights—groups that I will collectively and loosely refer to in the paper as the “freedom movement”—have with some success used litigation, particularly in federal courts, to advance their missions. Despite the hesitancy some have about using judicial power to limit abuses by the other branches of government, such action is both necessary and appropriate because the courts were intended to protect individual liberties against majoritarian abuses. However, the freedom movement largely has overlooked a vital component of a profreedom litigation agenda: state constitutions.

In the American federalist system, state constitutions were intended to provide the primary bulwark for the protection of individual rights. That role is even more important as the growth of state and local governments now eclipses that of the national government, creating a large and growing wake of individual rights violations. While Rehnquist-era federal courts increased protection for individual rights in several contexts, the constitutional counterrevolution has dissipated. By contrast, state constitutions have been almost entirely untapped as a source of protection for individual rights.