Workers’ Rights

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Labor Movement ◽  
State Legislatures ◽  
Labor Rights ◽  
Court Decisions ◽  
Constitutional Rights ◽  
State Constitutions ◽  
Positive Rights ◽  
Negative Rights ◽  
Labor Leaders ◽  
Louis Hartz

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.

Conclusion

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Environmental Protection ◽  
The State ◽  
Labor Rights ◽  
Constitutional Rights ◽  
Constitutional Development ◽  
State Constitutions ◽  
Positive Rights ◽  
The Many ◽  
Constitutional Tradition ◽  
Over Time

This concluding chapter clarifies that the book has refuted the claim that positive rights are outside the American constitutional tradition by investigating the various campaigns to add education and labor rights as well as rights to environmental protection to state constitutions. By including state constitutions in our view of American constitutionalism, many successful movements for positive constitutional rights become immediately apparent. The campaigns for positive rights have varied across states and over time, but each has worked for a more expansive government, one intended to protect people from threats other than a tyrannical state, and often from the dangers associated with unfettered capitalism. This chapter examines the exclusionary and racist side of the movements that championed positive rights and highlights the many, mutually influential connections between constitutional development at the state and federal levels.

Education

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
State Legislatures ◽  
State Level ◽  
Constitutional Rights ◽  
State Constitutions ◽  
Redistributive Policies ◽  
Positive Rights ◽  
Common School ◽  
The Common ◽  
Common School Movement ◽  
School Movement

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.

Looking for Rights in All the Wrong Places

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
United States ◽  
The United States ◽  
Labor Rights ◽  
Constitutional Rights ◽  
Political Movements ◽  
Constitutional Politics ◽  
State Constitutions ◽  
Positive Rights ◽  
1960S And 1970S ◽  
The 1960S

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.

Looking for Rights in All the Wrong Places

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
State Level ◽  
The United States ◽  
State Governments ◽  
Constitutional Rights ◽  
State Constitutions ◽  
Positive Rights ◽  
History Of ◽  
Constitutional Tradition ◽  
Fundamental Values ◽  
The U.S

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. This book argues 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 U.S. Constitution. The book 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. This book 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 light on the variety of reasons that activists pursued the creation of new state-level rights, the book challenges us to rethink our most basic assumptions about the American constitutional tradition.

Environmental Protection

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Environmental Protection ◽  
National Level ◽  
Constitutional Rights ◽  
State Constitutions ◽  
Positive Rights ◽  
The Subject ◽  
Constitutional Conventions ◽  
1960S And 1970S ◽  
The 1960S ◽  
Executive Agency

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.

Protecting a Federal Right to Educational Equality and Adequacy

2019 ◽  
pp. 303-326
Author(s):  
Joshua E. Weishart
Keyword(s):  
Due Process ◽  
School Funding ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Educational Equality ◽  
Right To Education ◽  
State Constitutions ◽  
Substantive Due Process ◽  
Principles Of Justice ◽  
Equal Citizenship

In this chapter, Joshua E. Weishart notes that courts have resolved lawsuits invoking state constitutional rights in ways that have subdued the tension between two principles of justice: equality and liberty. The equality versus adequacy debate in school funding challenges at first stoked that tension until court decisions gradually demonstrated their potential interrelation. State constitutions, however, do not fix standards for the mutual enforcement of educational equality and adequacy, and thus, courts have struggled with remedies that serve both aims. Weishart contends that reconciliation ultimately must come through reconceptualizing children’s equality and liberty interests as an integral demand for equal liberty, one that treats differently situated children according to their needs so as to cultivate positive freedoms for equal citizenship. A federal right to education can elucidate this demand and facilitate its enforcement, aligning with the newly professed synergy between equal protection and substantive due process.

Defining Positive Rights

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Government Intervention ◽  
Environmental Rights ◽  
State Constitutions ◽  
Positive Rights ◽  
Negative Rights ◽  
Definition Of ◽  
Constitutional Tradition ◽  
The U.S

This chapter provides a definition of rights and describes the distinction between the categories of positive and negative rights. It first examines the rights movements' campaigns to add education, labor, and environmental rights to state constitutions before discussing the controversy surrounding the positive–negative distinction. It defines positive rights as those that require government intervention in order to protect people from threats that are not directly or solely governmental. In contrast, negative rights are those that require government to restrain itself in order to protect people from threats that stem directly from an overbearing and intrusive state. The chapter suggests that state constitutions and the politics that have surrounded them demonstrate the importance of positive rights as an enduring feature of the U.S. constitutional tradition.

Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 5 The New Judicial Federalism

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
Review Literature ◽  
Federal Courts ◽  
Court Decisions ◽  
Constitutional Rights ◽  
High Court ◽  
State Constitutions ◽  
Minimum Standards ◽  
Judicial Federalism ◽  
Judicial Interpretations

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.

Who Decides?

2021 ◽  
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Constitutional Law ◽  
Local Governments ◽  
State Governments ◽  
Constitutional Rights ◽  
Individual Rights ◽  
Home Rule ◽  
Constitutional Protection ◽  
State Constitutions ◽  
Law And Politics ◽  
Federal Constitutional

The earlier book, 51 Imperfect Solutions, told stories about specific state and federal individual constitutional rights, and explained two benefits of American federalism: how two sources of constitutional protection for liberty and property rights could be valuable to individual freedom and how the state courts could be useful laboratories of innovation when it comes to the development of national constitutional rights. This book tells the other half of the story. Instead of focusing on state constitutional individual rights, it focuses on state constitutional structure. Everything in law and politics, including individual rights, eventually comes back to divisions of power and the evergreen question: Who decides? The goal of this book is to tell the structure side of the story and to identify the shifting balances of power revealed when one accounts for American constitutional law as opposed to just federal constitutional law. Who Decides? contains three main parts—one each on the judicial, executive, and legislative branches—as well as stand-alone chapters on home-rule issues raised by local governments and the benefits and burdens raised by the ease of amending state constitutions. A theme in the book is the increasingly stark divide between the ever-more-democratic nature of state governments and the ever-less-democratic nature of the federal government over time.

Part III Structure of State Government, 9 The State Legislative Branch

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
State Government ◽  
Direct Democracy ◽  
State Legislatures ◽  
The State ◽  
State Constitutions ◽  
The People ◽  
Legislative Branch ◽  
State Legislative

This chapter discusses the fact that state constitutions create a legislative branch that is substantially different from the federal Congress. Most importantly, state legislatures exercise reserved, plenary power subject only to limitations in the state or federal Constitutions. The federal Congress, by contrast, exercises enumerated, delegated power. In addition, the state legislatures are subject to a variety of limitations on the process of lawmaking that are contained in state constitutions. The chapter discusses the variety of approaches to judicial enforcement of these procedural limitations. Finally, in a number of states, the state legislature's lawmaking power is shared with the people, who can enact or defeat laws through direct democracy, or the initiative and referendum processes.

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