State Court Treatment of Positive Rights Affirmative Duty Provisions
Laura Bomyea is a third year student at Albany Law School. She received her undergraduate degree from Bard College, where she studied philosophy and literature. Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, a Student Editor on the Albany Law Review and the New York Municipal Lawyer, and a Research Assistant with the Government Law Center. She also works as a Law Clerk with Young/Sommer LLC.This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2012.
Judge Posner famously said “[t]he men who wrote the Bill of Rights were not concerned that [the] government might do too little for the people but that it might do too much to them.” As such, our federal Constitution is concerned primarily with preventing the government from infringing on such rights of individuals as the right to speak and worship freely. By portraying the U.S. Constitution as “a charter of negative rather than positive liberties,” the philosophy expressed by Posner has essentially positioned the Supreme Court as the arbiter of when the government has done too much.
But many Americans still enjoy a panoply of affirmative rights—to education, to a clean environment, to public assistance programs for the needy—which (ideally) protect them from their government doing too little on their behalf. These “positive” rights are bestowed not by the U.S. Constitution, but by state constitutions, through provisions that urge or, in some cases, mandate state legislatures to act in a way that protects and furthers certain public policy goals.
At least twenty-three state constitutions include provisions for the protection of the needy. Some provisions simply empower state legislatures to develop programs, facilities, and services to assist the poor, while others give state governments a broad grant of authority to take action to care for the needy. These states vary widely in how often constitutional protections for the needy are litigated. And these states’ judiciaries vary widely in how active a role they play in enforcing the promises of these constitutional protections.*
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* Citations to references in this introduction are available in the paper.
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