Defining Rights in the States: Judicial Activism and Popular Response

Abstract

This article examines state-level contests over the definition of rights. While the U.S. Supreme Court has established a floor of rights that all states must observe, states can expand rights beyond federal minimums. During the past four decades, courts in several states have developed expansive definitions of rights in hotly contested areas including capital punishment, criminal procedure, racial desegregation, abortion, free speech, education equalization, non-establishment of religion, non-discrimination on the basis of sexual orientation, and marriage for same-sex couples. Many of these decisions have endured and substantially reshaped the law. Others, however, have been reversed through state constitutional amendments. This article documents these patterns of conflict and concludes that the controversial state-level practice of popular referendums on contested rights provides important benefits, including increasing the legitimacy of new rights and reducing popular pressure for removal of judges.