Issues

On November 6 and 7, 2025, the Northwestern University Law Review, along with the Brennan Center for Justice and State Court Report, convened for its annual symposium, titled The Power of State Constitutional Rights. The symposium brought together judges, practitioners, and scholars to consider the substantive rights protected by state constitutions, the institutions charged with enforcing them, and the democratic processes through which state constitutional law changes. Across conversations about reproductive freedom, criminal procedure, labor, economic liberty, LGBTQ+ rights, voting, federalism, and judicial design, one proposition repeatedly, and emphatically, came into view: American constitutional law is not exhausted by the United States Constitution.

Despite the lack of serious interrogation at the federal constitutional level of economic regulations, there continues to be a fairly robust, energetic attention at the level of state constitutional law to so-called economic liberties. In a number of key cases, including, for example, matters involving occupational licensing, state courts have looked to unique features of their respective state constitutions to assess whether and to what extent regulations undertaken under the police power go too far. The rationales for evaluating and, in some cases, invalidating regulations under economic liberties principles are creative, and also controversial. The development of new interpretive approaches at the state constitutional level are worth continuing attention, especially given the stark contrast with contemporary federal constitutional law.

Almost ninety years after Congress banned “oppressive” child labor as part of the Fair Labor Standards Act, employers are pushing state legislatures to let them put children to work in dangerous poultry plants, at hazardous construction sites, and during late shifts on school nights. Perversely, calls to rollback federal protections are camouflaged in the rhetoric of parents’ rights, casting child labor regulation as intrusive, paternalistic, and even socialist—echoing the same corporate arguments used a century ago when the Child Labor Amendment to the U.S. Constitution went down in defeat. These arguments mask the desperate economic circumstances of a parent claiming a “right” to have their child engage in unsafe working conditions—circumstances created by employers who effectively get government subsidies to hire workers on the cheap and amplified by federal policies that eliminate or cut funding for programs that support families. Although many of the proposed state rollbacks go below federal statutory requirements, presidential politics make federal enforcement proceedings unlikely, and federal courts so far have blocked suits brought by children and their parents to enforce federal law. No person in the United States should be priced out of the blessings of family. This Essay argues that state constitutions, with their commitments to education, welfare, health, safety, and labor, could provide a bulwark against harmful child labor practices as well as a pathway to greater protections than federal law currently provides. Indeed, state constitutions offer more than just doctrinal tools. In particular, they give voice to democratic aspirations that reframe the narrative of child labor: regulation does not pit government against parents but rather allies government with parents to make family formation and child rearing affordable and accessible. Above all, this Essay underscores a broader theme: that social and economic rights, treated by the Supreme Court as absent from American constitutional law, persist in state constitutions and can shape and motivate a family-by-family campaign for economic justice on behalf of parents and children.

State legislatures regularly propose and enact laws that seek to shape the substantive outcomes of state courts. These maneuvers, including court-packing, jurisdiction-stripping, and more creative changes to judicial selection or authority, would amount to legal earthquakes at the federal level. At the state level, these efforts often receive virtually no attention. This Essay brings the potent category of outcome-shaping state court reform measures into focus and evaluates it as a question of state constitutional law. We argue that state constitutions, organized around principles of popular sovereignty, do not bar measures that align state courts with popular preferences or the public’s vision for the judiciary. But state constitutional principles do require, at a minimum, that outcome-shaping changes to state courts receive public engagement and validation. Too often today, legislatures meddle in state court decision-making while skirting or actively thwarting public engagement. More broadly, we highlight the need to recover public engagement with state judiciaries.

Over the past 250 years, state constitutional drafters have refined the scope of rights and liberties protected by their constitutions’ texts. Today, all state constitutions include a search-and-seizure provision—and though only a minority follow the layout, text, and context of the Fourth Amendment to the U.S. Constitution, most of them bear a striking resemblance to it. However, textual variations abound. Some of them may seem minor, like using the word “possessions” instead of “effects,” or mandating that warrants describe their intended targets “as nearly as may be” instead of requiring that they “particularly describ[e]” them. But others, like the addition of “electronic data and communications,” are far more significant. Yet regardless of the nature of the addition, most courts do not seem to view these linguistic changes as legally significant. While there are some exceptions, most state courts effectively gloss over the textual differences when interpreting the scope of their search and-seizure provisions. In this Essay, I argue that these textual differences could alter the applicability of several doctrines from federal criminal procedure jurisprudence—and that they should not be read out of state constitutions. Relying on an original database of state constitutions and proposed amendments, I chart out the textual changes to state constitutions’ search-and-seizure provisions from 1776 to present, survey case law interpreting these provisions, and conclude that while courts have largely not treated these differences as relevant, they should.

Jurists nationwide are engaged in robust conversations about state constitutionalism and the degree to which their state constitutions are more protective of individual rights than is the United States Constitution. The Rhode Island Supreme Court, like several state supreme courts, largely adheres to the minimum standards of protection that the United States Supreme Court establishes under the federal constitution when interpreting analogous provisions under the state constitution; that is, it follows a lockstep approach with the United States Supreme Court’s interpretation of individual rights guaranteed by the federal constitution that are also protected under the Rhode Island Constitution. Proponents of state constitutionalism have long criticized the lockstep approach. This Essay suggests, however, that adherence to the lockstep approach has often been justified as a form of judicial restraint. Nevertheless, at a moment of relatively low public confidence in courts and retrenchment in the recognition of federal constitutional rights, continued adherence to the lockstep approach requires reconsideration by jurists and practitioners alike.

In Geduldig v. Aiello (1974), the U.S. Supreme Court held that pregnancy discrimination does not constitute sex discrimination. The decision’s constitutional logic has recently been applied in Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti. Yet over five decades, state courts have overwhelmingly rejected Geduldig’s rationale—both in construing state employment discrimination statutes and in interpreting state constitutional equality provisions. Courts in at least sixteen states have rejected Geduldig’s rationale in construing state employment discrimination laws, while only four states have followed it. Of the ten states with Equal Rights Amendments that have addressed whether pregnancy discrimination constitutes sex discrimination, eight have rejected the federal approach. Several state courts—most notably in New Mexico and Pennsylvania—have offered detailed explanations of the logical flaws in Geduldig’s reasoning. This Essay surveys that body of state jurisprudence, identifies the doctrinal and logical critiques state courts have leveled against Geduldig, and argues that the Supreme Court should engage with these state-level trends as it does in other areas of constitutional law.

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay considers the implications of these developments for state constitutional law. The Essay’s descriptive findings challenge a central theory of state constitutionalism that rests the validity of state courts interpreting their constitutions independent of analogous federal doctrine on the idea that state and federal courts are engaged in a collaborative “dialogue” over shared constitutional values. The Essay’s docket analysis and close reading of relevant cases undermine the theory’s plausibility. The Justices are both reviewing more cases that turn on state law than they have in recent decades and are redefining the central limit on their power to do so—AISG—in order to countermand, override, and even belittle the development of state law. At the same time, more and more state judges are recognizing that the Court’s text, history, and tradition approach to constitutional law is a foreign dialect and thus largely unrecognizable. This Essay urges us to consider alternatives to the dialogic frame and offers one possibility, grounded in state constitutions’ first principles, to anchor the legitimacy of state constitutionalism.

On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.

This Essay is not an endorsement of either or both of these views. Instead, the goal of this Essay is to interrogate whether these prominent views can hang together. It is possible that some special features of state courts or state law might respond to concerns with judicial supremacy that do not apply to the federal courts. Working out that possibility is going to require more descriptive and normative work from scholars. This Essay lays out a framework for that work. After summarizing the turns to praising state courts and to criticizing judicial power, this Essay presents a research agenda that focuses on state constitutions, state structure, state judicial selection, and federalism. In so doing, this Essay also, though less directly, seeks to make sure that constitutional structure is also part of the conversation about state constitutional rights.