Federalism gives Americans two layers of protection
Judge Jeffrey Sutton’s essay on federalism at the National Constitution Center highlights a truth that Mark Rienzi of the Becket Fund stressed in our American Habits interview: our rights are safest when shielded by multiple layers of protection at both the state and federal levels.
Just like so many aspects of the political sphere today, we tend to excessively nationalize our understanding of rights. We interpret our rights through the U.S. Bill of Rights but pay little to no attention to state constitutional protections.
The entirety of Sutton’s essay is important as he offers up some reminders where power has shifted in favor of the federal government, too.
Sutton reminds us that the first state constitutions, drafted between 1776 and 1787, were the original guardians of rights we now take for granted. They secured speech, religion, jury trials, and due process before there was a federal Constitution at all. Even now, these state charters remain powerful tools for liberty, sometimes offering broader protections through unique language or interpretation than those recognized by federal courts.
This is also an essential point made by Arizona Supreme Court Justice Clint Bolick in American Habits last year.
Within our latest issue on religious liberty in the states, Rienzi calls this “a web of overlapping safeguards” that ensures our rights are respected in daily life, not just after a lawsuit. State religious freedom restoration acts (RFRAs) and other laws are part of that network, holding governments accountable.
At a recent conference of mostly state legislators I attended, one lawmaker reminded us that most state constitutions include a powerful directive: “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”
It’s a reminder that state constitutions aren’t meant to be static relics or dusty legal texts but living guides that require regular reflection and application. If we ignore them, we risk letting the protections they provide fade away in our civic life.
Sutton concludes on an essential point: “Whatever the future arc of American constitutional law and American policy, it will surely benefit from 51 voices rather than just one.”
—Ray Nothstine
— The Federalism Beat