CHAPTER 1

Looking for Rights in All the Wrong Places

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On January 15, 1870, Illinois's third constitutional convention had beenunder way for just over a year, and an experienced coal miner namedGeorge Snowden wrote a letter to one of its delegates. In it, he explainedthat his poor health had prevented him from writing sooner, but that inreading a newspaper account of the constitutional convention, he wasmoved to communicate with its members. He wrote, "as a miner, I thoughtit but proper that the miner's interest ought to be considered in that convention.I do not know that it is right in a legal sense, but I know it will do noharm for you to consider what the miners ought to have as their rights—eitherin the convention or in the legislature." He went on to detail theprotections that the miners "ought to have as their rights," listing specificregulations like requirements for ventilation and escapement shafts in coalmines, the mandatory presence of mining inspectors, and laws compellingmine owners to pay damages to injured miners.

Snowden might well have been pleased by the outcome. The new stateconstitution established the duty of the state legislature to enact several ofthe safety regulations he listed, and thereby obligated government to protectthe state's miners from the dangerous conditions in which they were forcedto work. Illinois's miners had, in fact, been organized to demand this kindof protection for some time, but had not been able to secure the protectiveregulations they sought from the state's legislature. After a decade of trying,they turned to the state's constitutional convention, where they successfullysecured this constitutional right to governmental protection from the particularlydangerous features of work in the mines.

Of course, when most people think about America's constitutional rights,they do not think about miners or about Illinois law. Instead, they thinkabout the U.S. Constitution, its Bill of Rights, and the Supreme Court opinionsthat have shaped its meaning. Studies of the federal Constitution andthe changes in its meaning have dominated discussions about American constitutionallaw. As a result, most accounts of American constitutional rightsdescribe these rights as limitations on the scope of government. Americanrights, we are often told, protect their bearers from tyrannical governmentby forcing government to restrain itself from intervening in social and economiclife. They do not mandate more government or offer protection fromthreats that do not stem directly from government itself. While other nationshave constitutional rights to an active, welfarist state, often known as positiverights, constitutional rights in the United States are often thought toprotect people from government alone, not to mandate that governmentprotect them from other sorts of dangers. In other words, America is widelybelieved to be exceptional in its lack of positive constitutional rights and itsexclusive devotion to negative ones. But how accurate is this conception?

As I will demonstrate, the conventional wisdom about the nature ofAmerica's constitutional rights is incomplete, and therefore incorrect. Theproblem is not that scholars have misinterpreted the federal Constitution orits history, but that most observers have taken the history of the federalConstitution and the federal Supreme Court to be the only one, or the onlyone worth considering. They have leapt effortlessly, and indeed unconsciously,from the assertion that the federal Constitution lacks positive rightsto the claim that America lacks positive rights, at least at the constitutionallevel. It is this error that I endeavor to correct.

The texts of state constitutions force us to question the ubiquitous assertionsthat America lacks positive constitutional rights. Illinois was not alonein creating constitutional rights to interventionist and protective government,nor was this provision for miners the only positive right it created.Throughout the nineteenth and twentieth centuries and across the UnitedStates, activists, interest groups, and social movements championed positiverights, and built support for their inclusion in state constitutions. As a resultof these political campaigns, state constitutions have long mandated activegovernment intervention in social and economic life, and have delineated awide array of situations in which government is not only authorized, butactually obligated to intervene. State constitutions contain many differentkinds of mandates for interventionist and protective government, not onlywith respect to laborers, but also with respect to government's obligationsto care for the poor, aged, and mentally ill, preserve the natural environment,provide free education, and protect debtors' homes and dignity.

This book focuses on three political movements to add these kinds ofpositive rights to state constitutions. In particular, it examines the campaignfor education rights, which spanned the nineteenth and twentieth centuries,the movement for positive labor rights, which occurred during the GildedAge and Progressive Era, and the push to add environmental bills of rightsto state constitutions during the 1960s and 1970s. Together, these casesserve to highlight not only the historically and geographically contingentvariations in the form and function of America's positive rights tradition,but also its extraordinary length. The arguments and political calculationsof the three rights movements I examine displayed remarkable continuityacross diverse issue areas, vast geographic distances, and entire centuries. Itis in this recurrent recourse to constitutional politics, along with the textualprovisions in state constitutions, that I identify a sustained positive-rightstradition.

State-level organizations' own descriptions of their views and goals providecompelling evidence for the...