Pathways to Justice: Positive Rights, State Constitutions, and Untapped Potential

Abstract

Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." Examples of positive rights range widely, including the right to education, right to welfare, workers' rights, environmental rights, and the right to housing.

Many foreign constitutions explicitly provide for positive rights found in their constitutions. And, in the context of international human rights, the Universal Declaration of Human Rights clearly and unmistakably advocates for various positive rights. In contrast, the United States Constitution does not contain any positive rights, and the United States Supreme Court has held that the federal Constitution does not obligate the state to provide for its citizens. As an integral part of a federalist system of government, however, the individual states within the United States are not governed solely by the federal Constitution. They each have their own constitutions, and one can find a litany of examples of positive rights such state constitutions. These positive rights provisions did not appear by accident or chance but were the result of the effort put forth by reformists, activists, advocates, and lawyers who sought to codify the government's affirmative duty to act in support of its citizens. This Article examines these individual strands of history, discusses the subsequent judicial enforcement (or lack thereof) of such provisions, and ultimately advocates for continued efforts to expand the breadth of positive rights provisions already present and to amend state constitutions to add additional protections.

Recommended Citation

Dustin Coffman, Pathways to Justice: Positive Rights, State Constitutions, and Untapped Potential, 24 Marq. Ben & Soc. Welfare L. Rev. 181 (2023).