State Courts and Economic Rights

The recent movement among state supreme courts to affirm rights not protected by the United States Supreme Court has occasioned much favorable commentary. In one area of this new judicial federalism—economic rights protection—the response has been less enthusiastic. State courts used various clauses of their respective constitutions to protect these rights even before the Civil War and have continued to do so despite the U.S. Supreme court's abdication of any serious role in the realm of economic rights. This persistence by state courts is justified by a historically valid substantive content of the due process clause, the numerous clauses in state constitutions concerned with the protection of property, and the role of the state courts in the American constitutional system. The arguments frequently invoked by critics of judicial activism on the part of the federal judiciary do not apply with the same force to the state judiciary. State courts can contribute to American constitutional liberties by actively protecting an area of rights that would otherwise find no forum for vindication.