For decades, groups seeking to protect individual rights groups that I will collectively and loosely refer to in the paper as the freedom movement have with some success used litigation, particularly in federal courts, to advance their missions. Despite the hesitancy some have about using judicial power to limit abuses by the other branches of government, such action is both necessary and appropriate because the courts were intended to protect individual liberties against majoritarian abuses. However, the freedom movement largely has overlooked a vital component of a pro-freedom litigation agenda: state constitutions.
In the American federalist system, state constitutions were intended to provide the primary bulwark for the protection of individual rights. That role is even more important as the growth of state and local governments now eclipses that of the national government, creating a large and growing wake of individual rights violations. While Rehnquist-era federal courts increased protection for individual rights in several contexts, the constitutional counterrevolution has dissipated. By contrast, state constitutions have been almost entirely untapped as a source of protection for individual rights.
State constitutions offer both procedural and substantive advantages in a pro-freedom litigation arsenal. Taxpayers generally have standing the legal capacity to sue under state constitutions, which can help to expose a great deal of governmental mischief to potential challenge. State constitutions often contain provisions for which there are no federal constitutional counterparts, such as gift clauses, balanced budget requirements, and broad proscriptions against eminent domain abuse. Moreover, even where federal and state constitutional provisions are similar or identical, state courts are free to interpret their own provisions more expansively than federal courts interpret the federal counterparts.
There now exists an array of state-based, market-oriented policy organizations. Merging state constitutional litigation programs with the ongoing work of such groups would strengthen both enterprises and create significant economies of scale. This blueprint provides a sketch of how such groups could add the power of litigation to their policy arsenals.