Introducing IJ’s First
By Chip Mellor and Clint Bolick
Current media and political focus on federal judge selection obscures a profound reality. When it comes to rights and responsibilities affecting the daily lives of all Americans, it is not just federal courts but also state courts that wield enormous power. With regard to nearly all torts, contracts, education, family law and criminal law—vast fields of jurisprudence touching intimately the lives of every American—state courts retain broad-ranging authority. And as to constitutional rights, the Federal Constitution is considered the “floor,” above which state courts are free to construct greater protections. Defenders of freedom must look to both venues to protect individual liberty. This fall we will launch a major new initiative: state-based litigation chapters to enhance IJ’s ability to bring advocates for liberty to courtrooms across America. These state chapters will complement our national litigation from our Washington, D.C. headquarters.
For decades, statist activists have aggressively pursued their agendas through state courts. The intellectual groundwork was laid by Justice William Brennan, the key architect of the Warren Court liberalism of the 1960s and ’70s, who feared a hostile conservative takeover of the federal judiciary and admonished liberals to take their cases to state courts. Though little enamored of federalism in other contexts, Brennan discovered within it a hidden gem of tremendous value. “The legal revolution which has brought federal law to the fore,” Brennan declared in a 1977 law review article, “must not be allowed to inhibit the protective force of state law.” A dozen years later, as liberals began to gain ground in state courts, Brennan proclaimed that the “rediscovery by state supreme courts of the broader protections afforded their own citizens by their State constitutions . . . is probably the most important development in constitutional jurisprudence of our times.”
Liberal groups like the American Civil Liberties Union, the NAACP Legal Defense Fund, and Ralph Nader’s Public Interest Research Group took up Brennan’s call with gusto. A classic gambit used a novel conception of free speech rights to trump private property. In 1972, the U.S. Supreme Court frustrated liberals by ruling that the First Amendment, which limits government power, did not require a private shopping mall owner to allow access for a petition drive. But seven years later, the California Supreme Court ruled that the free-speech provision of the state constitution mandated such access, reasoning that private shopping malls have essentially replaced public streets. When the case reached the U.S. Supreme Court, (now Chief) Justice William Rehnquist applied federalism principles to defer to the state court’s ruling. Liberal Justice Thurgood Marshall, giving his conservative colleague rare praise, applauded the decision as “part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this Court has given to the Federal Constitution.” Thus did Warren-era liberals become advocates of “states’ rights” when the ends suited them.
Likewise, in 1973 the U.S. Supreme Court ruled in San Antonio School Dist. v. Rodriguez that the Federal Constitution did not forbid wealth disparities among school districts based upon differences in local property taxes. But liberals subsequently prevailed in more than a dozen state supreme courts, striking down property-tax-based education financing and opening the spigots to massive increases in state funding of public schools.
Libertarians and conservatives often play defense in these venues and rarely mine state constitutions for provisions that could expand basic freedoms. The potential is vast: after all, in the scheme of federalism, states are supposed to provide the surest bulwarks for individual liberty. State constitutions often contain provisions that were intended to protect private property and freedom of enterprise but are rarely invoked.
One example is the “public use” requirement for the exercise of eminent domain, found in the federal and most state constitutions. In 1984, the U.S. Supreme Court ruled unanimously that a public use is essentially whatever the government decrees it is, thereby removing it as a federal limit on the power of eminent domain. But some state courts continue to apply the restraint. Mississippi’s Supreme Court, for instance, places the burden on government to show that the taking of private property is for a public use; similarly, a New Jersey state court struck down Atlantic City’s efforts to take private property to provide a parking lot for Donald Trump’s limousines.
And the “floor” for constitutional rights works in both directions. Take commercial speech, to which the U.S. Supreme Court accords less protection than other types of speech. In 1997, the Court upheld a federal marketing order that required California farmers to contribute to generic advertising of certain agricultural products. But last year, the California Supreme Court—interpreting its state constitution as “a document of independent force and effect particularly in the area of civil liberties”—rejected the dichotomy between commercial and other types of speech and reached the opposite result on a similar marketing order.
Institute chapters, starting with Arizona, will bring litigation based on state constitutions and statutes to vindicate economic liberty, private property rights, school choice, and free speech.
State constitutions often also provide procedural devices to limit the power of government. Taxpayers, for example, do not have standing to challenge most laws and regulations in federal courts; but in state courts, they do. Many state constitutions forbid “private or local bills” from being smuggled into larger general-purpose legislative measures. Taxpayers can only dream of challenging pork-laden appropriations bills at the federal level; in the states, they can do a lot more than dream.
While a couple of dozen conservative and libertarian public interest groups today litigate vigorously in all sorts of areas, they concentrate almost exclusively on federal courts. The reason is simple: with limited resources, it’s important to seek the most broadly applicable precedents. But that leaves vast areas of law—and potentially helpful constitutional doctrines—largely untapped. And it means that state courts are too often the province of left-wing interest groups.
The Institute for Justice will begin changing that this fall when we launch our state chapter initiative. Institute chapters, starting with Arizona, will bring litigation based on state constitutions and statutes to vindicate economic liberty, private property rights, school choice and free speech. The potential is vast and the Institute’s strategic initiative will rapidly fill a crucial void. Even suffering resource disparities, we will succeed as we have in the federal courts. After all, both the federal and state constitutions were designed to safeguard individual rights and limit the power of government. We don’t have to distort original intent; we merely have to vindicate it.
The Framers understood that state and local governments could be a threat to liberty—or a safeguard. So it’s not surprising that much of our litigation challenges such grassroots tyranny. From headquarters in Washington, D.C., we will continue to attack grassroots tyranny in federal and state courts. Adding state-based chapters to our already potent litigation arsenal will make IJ uniquely effective, transforming us from a national to a nationwide organization. It’s time to get started.
Chip Mellor is IJ’s president and general counsel, and Clint Bolick is IJ’s vice president and director of state chapter development.