State courts, voters increasingly turning to state constitutions to protect rights

Nearly 50 years ago, Justice William Brennan Jr. urged lawyers and others to look to state constitutions for more protection of individual rights than what the U.S. Supreme Court was then finding in the federal Constitution.

Recent decisions by Montana and Oklahoma state courts in cases involving climate change and abortion have reinforced his long-ago advice.

Brennan, writing in the January 1977 Harvard Law Review, had been part of the liberal Warren Court era, a period marked by Brown v. Board of Education and other rulings recognizing and expanding civil rights. But that era ended with Chief Justice Earl Warren’s retirement in 1969. Chief Justice Warren Burger succeeded him and ushered in a more moderate era.

Although Brennan listed areas in which he felt the Burger Court had retrenched on civil rights and liberties, it is also true that the Burger Court extended or kept a number of the liberal Warren Court rulings.  In fact, the landmark abortion rights decision, Roe v. Wade, was a 7-2 ruling by the Burger Court.

But in 1977, Brennan was noting a trend in which state courts were beginning to emphasize the protections of their states’ own bill of rights.

“It may not be wide of the mark, however, to suppose that these state courts discern, and disagree with, a trend in recent opinions of the United States Supreme Court to pull back from, or at least suspend for the time being, the enforcement of the Boyd principle with respect to application of the federal Bill of Rights and the restraints of the due process and equal protection clauses of the Fourteenth amendment,” Brennan suggested.

The Boyd principle comes from the 1886 Supreme Court decision in Boyd v. United States. Justice Bradley, writing for the court, said illegitimate and unconstitutional practices sometimes begin by silent approaches and slight deviations from legal procedures.

“This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed,” Bradley wrote. “ A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.”

Recent rulings by the U.S. Supreme Court may not be responsible for increased activity by state courts and voters in turning to their state constitutions, although the elimination of the right to abortion by the conservative majority undoubtedly is responsible for some. But there is no denying that state courts and voters have been especially active with regard to state constitutions in the last few years.

On August 14, a Montana state court judge ruled that the state’s failure to consider climate change when considering whether to approve or renew fossil fuel projects violated the state constitution.

The ruling relied on language in the state constitution that guarantees residents “the right to a clean and healthful environment.” It also says that the state and individuals are responsible for taking care of and improving the environment “for present and future generations.”

News reports said that a handful of other states have similar language in their constitutions and lawsuits in three of those states are now pending in state courts.

In March, the Oklahoma Supreme Court ruled that the state constitution protects the right to abortion in life-threatening situations. The court said that “the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”

The state high court pointed to language in the state constitution that said: “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

That section, the court said, “stands as the basis for protecting a woman’s right to terminate a pregnancy in order to save her life.”

Voters also have been active recently in amending their state constitutions to enshrine new rights and old ones, such as the right to abortion.

In 2021, Maine voters approved an amendment that creates a right to food. There is no such right in the federal Constitution, although it is a well-established right in international human rights law, according to the Brennan Center for Justice’s State Court Report. The Center reports that the Maine Supreme Judicial Court will hear arguments this fall in Parker v. Department of Inland Fisheries & Wildlife, which relies on the right to food to challenge the state’s ban on Sunday hunting.

The Center also has reported other recent voter-approved amendments, including: “the fundamental right to organize and bargain collectively” in Illinois, which also prohibits enactment of state laws interfering with that right. An explicit “right to bear arms” in Iowa; a state-level Equal Rights Amendment in Nevada; and an explicit “fundamental right to vote” in Michigan, including provisions expanding voter access.

And in 2022, responding to the fallout from the U.S. Supreme Court decision eliminating the right to abortion, voters in California, Vermont, and Michigan approved amendments adding rights to reproductive freedom to the state constitutions.

In his Harvard law review article, Brennan wrote that he wanted to stress “that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. 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.”

If recent activity is evidence, a number of state courts and voters appear to have discovered and are acting upon that fundamental aspect of our federal system.

Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.