State Courts and Constitutional Socio-Economic Rights: Exploring the Underutilization Thesis
By Helen Hershkoff and Stephen Loffredo.
Comparative constitutional scholars are beginning to recognize the importance of subnational constitutions for law-making and governance. In particular, commentators emphasize that a polity’s decision to assign some aspects of constitutional practice to the subnational level significantly affects the political choices available to constitutive units within a larger system and to the system overall. So far, the emerging literature largely has focused on the structural aspects of constitutional design, including such features as whether to have a Parliament or a legislature, whether to have a bicameral or a unicameral legislature, and so forth. Although the political space reserved for subnational constitutions also extends to substantive issues, the nascent comparative literature on this subject suggests that constitutive units do not always develop the substantive authority that their constitutions afford them. Rather, commentators observe that “subnational units in federal systems more often underutilize their constitution-making competency than they overutilize it.” Some commentators further argue that because of agency costs, subnational constitutional rights may tend to be judicially under-protected or only weakly entrenched in the sense of being subject to easy amendment, reversal by popular referendum, or dilution through legislative backlash.
The United States federal system well illustrates the potential of subnational constitutions—the constitutions of the fifty states—to encourage a poly-vocal approach to substantive issues involving rights and obligations. To take an important example, the federal Constitution is silent on many questions of socio-economic concern. However, almost every state constitution in the United States explicitly addresses important public goods such as education, income assistance, and housing support, and some state courts have tried to enforce these provisions in the face of legislative indifference or recalcitrance. Other state courts, however, treat socio-economic constitutional provisions as nonjusticiable and so underutilize the authority that the state constitution sets out. Inherent in U.S.-style federalism and a vision of states as “laboratories of experimentation” is an understanding that state constitutions will differ both from the national Constitution and from each other, and also that state courts will take different approaches in interpreting state documents. However, a serious question is presented if state courts decline to enforce the rights that their subnational constitutions include. This Article explores the subnational constitutional underutilization phenomenon in the context of U.S. judicial enforcement of state constitutional socio-economic rights.