abstract. Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.S. history and is still in use today.

Introduction

It has been widely documented that, around the world, political questions are increasingly decided in and by courts.1 This phenomenon is often described as “judicialization,” and those studying the phenomenon have observed that constitutional design is one driver of judicialization. When constitutions come to include a wide range of topics, this expanded range of policy issues then falls within the purview of the judiciary.2 Constitutional scholars have also interrogated the normative desirability of judicializing politics, with many expressing concerns about it.3

The process of judicialization is real and important, and so are the normative issues it presents. But in this Essay, we focus on its mirror image. Rather than emphasizing the way that constitutions can be used to empower courts to make policy choices, we argue that they can also be used to limit courts’ role in policymaking. That is, political actors can design constitutions to reduce judicial discretion as they interpret constitutions, and thereby reduce their influence over the outcome. We illustrate this point by exploring constitutional politics in the U.S. states, since state constitutions have long been deployed to de-judicialize politics.

We define “de-judicialization,” broadly, as a reduction in the influence of courts over the outcome of policy choices. De-judicialization can take many forms. Political actors sometimes attempt to limit the power of the judiciary over policy questions through jurisdiction stripping—formally removing a policy area from the courts’ purview.4 Others have attempted to constrain the judiciary’s influence through court packing, or the institution of judicial elections.5 Our focus here, however, is on one particular de-judicialization strategy—the enumeration of detailed, rule-like provisions in the text of a constitution.6 This strategy, we argue, has been employed at the state level, where political actors have long used constitutions not only to empower courts, but also to limit the judiciary’s role in shaping policy outcomes.7

We argue that this strategy is currently being employed in the battle for abortion rights. As Dobbs v. Jackson Women’s Health Organization8pushed abortion rights back to the state level, much debate has been focused on whether state constitutions’ equal-protection clauses and privacy protections include a right to an abortion. But courts have not been particularly reliable partners in finding abortion protections in such provisions, with some changing tracks as court composition changes. Considering that abortion rights enjoy majority support in most of the country,9 more abortion-rights advocates could consider mobilizing for detailed state constitutional amendments that grant specific abortion rights. By placing specific policies directly in constitutions, such amendments have the potential to take big policy questions out of the hands of state courts and legislatures.

In what follows, we will first theorize the phenomenon of de-judicialization through constitutional detail. We next offer three examples of the attempt to de-judicialize through constitutionalization: (i) labor rights, (ii) debtor rights, and (iii) abortion rights. We then describe other potential areas for de-judicialization—criminal debt and climate change—and finally, conclude by reflecting upon the conservative legacy of both de-judicialization and federalism.

I. de-judicialization through constitutional detail

There are good reasons to associate constitutionalization with judicialization. Research on constitution making has demonstrated that empowering courts is often in the interest of political elites. Elites who are about to lose electoral power can preserve their policy preferences by enshrining them into a constitution itself. This ensures the continued implementation of their political agenda by the judiciary, even after these elites lose electoral political power.10 Much of this research originates in the comparative context, but scholars have demonstrated a similar phenomenon within the United States. Jennifer Nedelsky has argued, for example, that the Framers of the U.S. Constitution included property rights precisely to remove distributional questions from the political agenda.11 Similarly, Keith E. Whittington has demonstrated that, in order to advance their own political agendas, presidents and other political leaders have deferred to the Supreme Court as the final arbiter over constitutional questions.12 Mark A. Graber and George I. Lovell have likewise documented how governing coalitions use courts to decide cross-cutting questions.13 Taken together, these studies demonstrate that those in positions of political power often strive to judicialize political questions, often by placing those matters in constitutions, or by describing them as lying outside the realm of normal, electoral politics, or both.

However, it is important to recognize that constitutions can also be deployed for the opposite purpose. Just as a constitution can expand the judiciary’s role in deciding particular policy questions, so too can it reduce that role. One strategy to de-judicialize constitutional politics is to place substantial detail in the constitution itself. Consider the U.S. Constitution. Its text contains few clear rules, and many rather broad standards. This lack of specificity has meant that those applying the constitutional text to specific policy questions must offer answers that draw, in part, from sources outside the text itself. In moving from the broad principles stated in the text to determinations about the constitutionality of particular policies, judges have to exercise substantial discretion.14 We are all familiar with this dynamic from observing the U.S. Supreme Court as it interprets the Constitution. The text does not specify, for instance, whether a right to “due process” includes a right to intimate privacy, and whether the right to intimate privacy, in turn, includes the right to an abortion.15 Likewise, it is far from clear, based on the text of the Constitution alone, whether the prohibition of “abridging the freedom of speech” protects people’s right to insult a police officer, dance naked, or burn an American flag.16 Within such a system—in which judges interpret broadly phrased provisions—it is easy to see how constitutionalizing a question would empower the courts to decide its answer. But things do not have to be this way.

By expanding our view of U.S. constitutionalism to include state constitutions, we come to see that constitutions can also be used to de-judicialize political questions—that is, to minimize the judiciary’s power over the answers. When constitutions contain highly specific provisions, they may limit, rather than expand, the judiciary’s capacity to shape public policy. What is more, when these detailed provisions are amended frequently, these changing details can minimize the need for ongoing judicial determinations in the development of evolving public policies. Unlike the federal document, state constitutions have proven both detailed and flexible over time. The average state constitution is amended every three years.17 This flexibility has allowed state constitutions to be vehicles for de-judicializing projects. By adding detailed policy statements to state constitutions, and then continuously tinkering with them, critics of courts have used state constitutions to push courts to the margins of particular policy battles.

To be sure, no matter how specific they are, constitutional provisions will remain open to competing interpretations.18 H.L.A. Hart’s description of the sign “no vehicles in the park” is one of the most famous examples of this jurisprudential phenomenon.19 Hart conjectured that the meaning of this statement would be clear in most circumstances. A truck or car driver noticing the sign will likely turn their vehicle around. But outside of what Hart called the “core” of the rule, there is also a “debatable fringe”20 or a “penumbra.”21 Is a stroller a vehicle, for instance, and if not, what makes it different from a truck or a car?22

Constitutional provisions, likewise, have a clear core and a debatable fringe. But how many political choices will fall within the clear core or within the debatable penumbra will likely depend, at least in large part, on the provision itself. For instance, when a constitution contains a rule that a president shall serve no more than two four-year terms, much of its application will fall within the clear core.23 Even here, of course, there is a debatable fringe,24 but the fringe is surely smaller than that surrounding a less specific provision, like the U.S. Constitution’s Due Process Clause. A court asked to interpret whether a third consecutive presidential term is constitutional will likely have little choice but to conclude it is not.25 When we describe highly detailed constitutional provisions as “de-judicializing,” we do not mean that courts will never make choices about the meaning of these texts. Our claim is more modest: highly specific constitutional texts can remove particular policy questions from the debatable fringe, and therefore constrain the judiciary’s ability to offer its own answers to these particular questions.

When conceiving of de-judicialization in this way, we should distinguish between two related but distinct scenarios that involve different actors at the helm of de-judicialization efforts. The first is that of popular majorities reining in those who interpret and apply a constitution. Popular majorities are necessary to ratify the work of a constitutional convention,26 as well as amendments that are passed through popular initiative.27 The second scenario is that in which a supermajority of the legislature is in charge when amending the constitution through the ordinary amendment process.28

We would expect the first scenario to be more conducive to progressive de-judicialization efforts than the second.29 One of the defenses of the initiative and referendum processes is that legislative policymaking may be at odds with the majority’s will. In contemporary politics, gerrymandered districts render many state legislatures out of step with majoritarian preferences, typically making them more conservative than a state’s population.30 In such states, we might expect progressive de-judicializing projects to fare better when they are conducted outside, rather than through, legislatures. Indeed, the concern that legislatures were corrupt and unresponsive was one of the main reasons state constitutional drafters first adopted the initiative and referendum.31 Of course, direct democracy itself has received serious criticism for serving wealthy interests rather than democratic majorities, but it does provide an opportunity for majorities to both circumvent legislatures and control courts.32

II. de-judicialization in action: labor, debt relief, and abortion

We have described a strategy of de-judicialization where drafters provide courts highly detailed constitutional instructions. In this Part, we offer three examples of political campaigns to reduce the influence of courts through constitutional detail. They demonstrate that drafting a specific constitutional provision to de-judicialize a policy question can be used both to respond to individual unpopular rulings33 and to preempt or replace entire legal doctrines.

A. Labor at the Turn of the Twentieth Century

Labor protections at the turn of the twentieth century offer one of the clearest examples of amending state constitutions to de-judicialize a policy controversy.34 In the last decades of the nineteenth century and the early decades of the twentieth, courts were a famous thorn in the side of labor unions. Courts viewed labor organizing with suspicion and invalidated many protective labor statutes as violations of the constitutional guarantee of liberty of contract. As American Federation of Labor founder Samuel Gompers declared, “[t]he power of the courts to pass upon [the] constitutionality of law so complicate[d] reform by legislation as to seriously restrict the effectiveness of that method.”35 Labor leaders reacted in part by bargaining directly with their employers.36 However, they also responded to the hostile judiciary by adding protective and specific labor provisions directly to state constitutions. Many of these provisions were added through constitutional conventions, and labor leaders often lobbied these conventions directly or even attempted to have delegates selected from among their own ranks.37

These provisions were deliberately crafted to ensure that courts could not overturn the policies labor organizations sought to advance. Thus, rather than enshrining broad guarantees of labor rights, the proponents and authors of these provisions included highly specific policies, like minimum wages and maximum working hours, in their proposals. Detailed labor provisions were added to state constitutions across the late-nineteenth and early-twentieth centuries, though the Progressive Era saw the most coordinated attempts to establish de-judicializing provisions related to hours, wages, working conditions, and workmen’s compensation. One primary purpose of these changes was to ensure that courts would no longer have sufficient interpretive discretion to overturn protective labor statutes. The New York State Constitution, for instance, was amended in 1914 to read, “Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws . . . for the payment . . . of compensation for injuries to employees . . . .”38 By 1940, fourteen states had constitutionalized the regulation of working hours, nine had constitutionalized workmen’s compensation, and seven had constitutionalized the question of the minimum wage.39

Advocates of these provisions explained that they would ensure courts could not invalidate similar legislation. In at least six instances, these labor-related provisions were added in direct response to an existing state high-court decision, designed precisely to overturn it.40 In other cases, the goal was to preempt an unfavorable ruling, de-judicializing a particular labor regulation before a court could weigh in on its constitutionality. The Montana Federation of Labor, for instance, was explicit about this purpose when it lobbied to include the eight-hour workday in Montana’s state constitution, explaining that many pieces of maximum-hours legislation were in danger at the hands of the judiciary unless the constitution was amended to protect them. The organization argued, “[L]aws that have been passed by the Legislature are subject to challenge by the courts as to their constitutionality . . . . Usually, the courts function in the interests of the corporations; so does the Legislature.”41 Even legislatures themselves sometimes used this strategy of constitutionalizing a policy in order to shield it from judicial nullification. In Progressive Era Vermont, for instance, members of the state legislature hoped to prevent a conflict over the constitutionality of a workmen’s compensation statute by first passing a constitutional amendment on the subject in 1914. Only after this amendment was ratified, in 1915, did the legislature pass a workmen’s compensation law.42

Of course, state labor law had to survive challenge on federal constitutional grounds as well, and in the 1905 case of Lochner v. New York, the Supreme Court famously invalidated a maximum-hours law as a violation of the Fourteenth Amendment’s Due Process Clause.43 Though the entire period has come to be known as the “Lochner Era,” the Court actually upheld a great deal of protective labor legislation. Between 1897 and 1937, forty-three Supreme Court rulings rejected substantive-due-process objections to employment regulations, while declaring employment regulations unconstitutional in only twelve.44 Meanwhile, state supreme courts were a separate and perhaps even more serious threat to protective labor law. Even if state constitutional change could do nothing to alter the federal constitutional threat, it could certainly keep state courts from invalidating these statutes. Advocates of protective labor laws therefore not only required legislative action, but also pursued state constitutional amendments to reduce the judiciary’s influence over it.

B. Debt Relief Across the Nineteenth Century

While labor regulation is probably the clearest example of de-judicialization through constitutionalization, debt relief may be the oldest.45 Just as state law once regulated the relationship between employer and employee, so did it govern the relationship between borrower and lender, especially when a borrower found that he could not pay his debts. Because private debts were enforced in state and county court, these courts were often the targets of debtors’ anger and protest. In Western Massachusetts, Daniel Shays famously led an armed rebellion of debtors who marched on courthouses to prevent them from operating.46 Throughout the late-eighteenth century and well into the nineteenth, debtors’ advocates also attempted to sideline courts through less violent means.

The practice of imprisoning debtors was an early target of such de-judicializing efforts. The American colonies adopted the British practice of providing security to creditors by allowing debtors to be arrested and imprisoned even before a judgment had been issued against them, though there had not yet been any adjudication of the validity of a debt. This practice persisted after the Revolution, and creditors, who needed only to make a sworn statement to have a debtor imprisoned, employed it to coerce repayment.47 In addition to this intermediate, or mesne, process for detaining a debtor, creditors could also seek a postjudgment writ requiring the sheriff to imprison a debtor until he had satisfied the judgment.48 Imprisoned debtors were often confined in overcrowded, filthy conditions, lacking access to adequate food or clean water.49 Early in the nation’s history, constitutional drafters, often assembled in constitutional conventions, attempted to alter this practice by explicitly specifying limits in state constitutions.

Pennsylvania was the first state to constitutionalize limits on imprisonment for debt by clarifying the conditions under which imprisonment would be impermissible. The Constitution of Pennsylvania of 1776 read, “The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison, after delivering up, bona fide, all his estate real and personal, for the use of his creditors, in such manner as shall be hereafter regulated by law.”50 North Carolina adopted an identical provision that same year.51 These were the first in what would come to be a long line of constitutional provisions drafted to curb imprisonment for debt. Beginning with the fourteenth state, Vermont, every new state constitution included a provision about debtors’ prisons.52

These provisions became ever more specific with time. The Jacksonian Era contained a great deal of constitutional drafting (and redrafting) by constitutional conventions as well as an energetic social movement, which mobilized working-class, antiaristocratic sentiment through mass petition drives, to abolish debtors’ prisons.53 This movement was accompanied by a flurry of new constitutional provisions outlining specific limitations on imprisonment for debt. Like their eighteenth-century predecessors, these provisions forbade imprisonment only after a debtor had delivered up his entire estate.54 In 1844, however, New Jersey became the first state to abandon this requirement, and the following year, Texas became the first state to ban all imprisonment for debt.55 By the time southern states were readmitted to the Union after the Civil War, the constitutions of three-quarters of the states included a provision restricting the imprisonment of debtors.56 Forty-one state constitutions currently limit or entirely prohibit imprisonment for debt.57

It is important to note that, unlike those related to labor, these constitutional provisions were not responses to a fear that similar legislation would be overturned by courts. Though courts were generally perceived to be hostile to debtors (especially when compared to juries),58 the most direct targets of these constitutional changes were elements of the common law itself. Like legislation on this question, these constitutional provisions were designed to displace judicially enforced common law, thereby de-judicializing the question of whether, and under what circumstances, debtors could be kept in prison. State legislatures had long freed debtors from prison on a case-by-case basis, in response to individual relief petitions, but constitutional provisions were intended to ensure that general rules, rather than ad hoc relief measures, would be enacted.59 Some critics considered the addition of state constitutional provisions about the imprisonment of insolvent debtors to be inappropriate, the kind of specific policy choice that was best left to legislatures.60 Debtor-related constitutional provisions, however, had the virtue of not only changing the site of a political controversy from courts to legislatures, but also requiring that legislatures take action. In this sense, these provisions were designed as popular mandates for both courts and legislatures.61

C. Abortion in the Twenty-First Century

Today, the question of whether to de-judicialize state constitutional law is, again, a part of our politics. Since the Supreme Court withdrew abortion rights at the federal level, states have been confronted with the question of whether to protect abortion under their own constitutions.

In some states, courts have become the central focus in resolving this question. Eleven state constitutions include an explicit right to privacy,62 spurring debate over whether these privacy provisions imply a right to an abortion.63 Where a state constitution enumerates a privacy right but not an explicit abortion right, this empowers courts to decide on whether the constitution protects abortion rights. State high courts that have found abortion rights in their constitutions’ privacy protections64 include those of Montana,65 Minnesota,66 Alaska,67 and Florida.68 In the same vein, some states have debated whether abortion rights can be found in equal-protection clauses, as feminists have long argued.69 Some state supreme courts, including those of Arizona70 and New Mexico,71 have indeed found that abortion restrictions violated their state constitution’s equal-protection clause or equal privileges and immunities clause.72 And state supreme courts in Kansas73 and Montana74 have (also) rooted abortion protections in rights of personal liberty and bodily integrity.75

Regardless of the exact basis of abortion protection, when abortion rights are not explicitly enumerated, there will always be debate over whether a constitution protects them. To put this in terms of our earlier framework, abortion is not in the clear core of either privacy or equality rights, but rather in the debatable fringe. Indeed, some states have recently seen courts undo existing judge-made abortion protection. For example, the South Carolina Supreme Court in January 2023 interpreted the state constitution’s privacy provision to include a right to abortion,76 but backtracked on this decision only months later after the retirement of its sole female justice.77 Another notable example comes from Iowa, where the state’s highest court in 2018 held that abortion restrictions violated the state constitution’s equal-protection clause,78 but reversed course when the composition of the court changed.79

Popular majorities can prevent courts from deciding (and redeciding) these questions by specifically protecting abortion rights in the text of constitutions themselves. Indeed, some states have passed constitutional amendments that do exactly this. The 2022 midterm elections saw the adoption of three such amendments, in Michigan,80 California,81 and Vermont.82

The Michigan amendment is worth inspecting further. It is 321 words long and takes several important questions out of the hands of both courts and future legislatures. For example, it makes clear what state interests are compelling enough to warrant regulation, by noting that the right to reproductive freedom “shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means”83 and that “[a] state interest is ‘compelling’ only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.”84 It further makes clear that there can be no absolute ban postviability, by allowing the state to “regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.”85 But to reduce any ambiguity over when a fetus is viable, it clarifies that “[f]etal viability” means “the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”86 The amendment also states that the state cannot “discriminate in the protection or enforcement of this fundamental right.”87 And it further protects pregnant women from prosecution for pregnancy outcomes by clarifying that “the state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion.”88 It likewise protects those aiding abortions.89 Finally, it makes clear that the constitutional provision does not depend on further legislative action by stating that “[t]his section shall be self-executing.”90

Other progressive states are likely to follow suit in adopting similar amendments. For example, a similar initiative is underway in Maryland, where voters will be able to vote on an abortion-rights amendment in the 2024 election. In states where conservatives hold the majority, abortion opponents have employed a similar tactic, amending, or attempting to amend, the constitution to clarify that no part of the document protects abortion rights.91

When legislatures are unwilling or unable to initiate such amendments, voters in states with direct initiatives can also take matters into their own hands. Currently, there are initiatives underway in both Ohio and Missouri to get an abortion-rights amendment onto the ballot.92 If successful, popular majorities in these states will be able to bypass legislatures in their efforts to de-judicialize the question of abortion by adding specific instructions to the state constitution.

Because access to abortion remains popular in many states, it has been difficult for abortion opponents to secure constitutional change to ban abortion explicitly. But those opposing abortion access have tried to use their state constitutions to block progressive abortion amendments. Recent years have seen conservative campaigners seeking to limit the popular initiative. In Ohio, the conservative legislature sought to block the scheduled popular initiative protecting abortion rights by quickly putting on the ballot an amendment that would make it harder to amend the constitution using the popular initiative.93 In response, Democratic campaigners successfully depicted the attempt to change the constitution’s amendment rules as an antiabortion measure, and the proposal was defeated by voters.94

Because successful constitutional amendments protecting abortion rights cannot easily be undone by either courts or legislatures, state constitutions are an especially powerful tool for progressives to protect abortion access. Rather than focusing on litigation efforts, therefore, progressive reformers may want to consider using constitutions to protect abortion access.

III. other areas for de-judicialization

Advocates of abortion access are already using state constitutions to de-judicialize policymaking, and this is not the only area in which progressives might consider this approach. Another area that calls for de-judicialization is the problem of legal financial obligations, sometimes described as criminal debt. Recent decades have witnessed rising punitiveness for lower-level criminal activity and growing antitax sentiments that have contributed to budgetary shortfalls at the state and local levels.95 One response to these pressures has been to charge people for their encounters with the legal system.96 Local governments have enacted fines for violations of low-level municipal ordinances, like traffic laws.97 Some jurisdictions charge criminal defendants for court costs, time spent housed in prison, DNA testing, and even jury selection.98 Those who do not pay can be jailed for failure to meet these financial obligations.99 As we describe above, many state constitutions already contain prohibitions on imprisonment for debt. And indeed, scholars have started to argue that courts should read these existing bans to include these new types of criminal debt.100

Rather than asking state courts to interpret old provisions in new ways, reformers might consider proposing new constitutional provisions that speak explicitly to this modern-day question.101 Such provisions could specify that debtors cannot be imprisoned if their debts are incurred through, for example, fines levied for civil offenses or fees related to costs associated with their trial or detention. These more specific constitutional texts could facilitate the kind of policy changes desired by progressive reformers without as much reliance on shifting judicial interpretations.

Another policy area in which specific constitutional amendments might be employed is the fight against climate change. Many state constitutions currently contain environmental rights.102 This has raised the question of whether these existing environmental protections can be applied in the climate-change arena. In Montana, climate-change activists won a recent victory based in part on the state’s constitutional right to a clean and healthful environment.103 But again, relying on the judiciary to interpret and enforce these provisions as applicable to climate change is a risky proposition. Courts have often (though certainly not always) been reluctant to interpret broadly phrased environmental rights expansively enough to declare state policies unconstitutional.104 However, state constitutions could be amended to specify that the right to a healthful environment requires state governments to combat climate change. Such provisions could add even more specific requirements, mandating, for instance, that the state track and report greenhouse gas emissions, enact particular vehicle emissions standards, or even specify particular greenhouse gas emission targets directly in constitutions. Courts could still be enlisted to enforce these constitutional mandates, but these detailed amendments would move questions about climate policy away from the debatable fringe of environmental-rights provisions and toward their interpretive core.

Of course, one might object that U.S. state constitutions seem like an especially inadequate response to a global phenomenon like climate change. On the one hand, such a critique rings true: enacting one’s preferred policies state by state is certainly less efficient than entering into international agreements or changing federal law. On the other hand, it may be a worthwhile approach, nonetheless. Even when it is possible to enact one’s preferred policies at a highly centralized level, state-level guarantees may still help to secure subnational implementation of these policies and provide useful redundancy in the face of changeable federal law. What is more, when it is impossible to secure one’s preferred policies at the federal level, state-level change is surely better than nothing. State-level campaigns may not only succeed in changing state law but also help to keep ideas and political projects vital and productive in the periods during which it is impossible to make federal progress. As Heather K. Gerken has explained, federalism, shorn of its attachment to separate spheres of authority or limits on federal power, allows for the pursuit of unmistakably national political ends.105

Conclusion: De-judicialization, Federalism, And The Cycles Of Political History

When progressive readings of the U.S. Constitution dominated federal jurisprudence, it was generally conservatives who critiqued the policymaking power of the Supreme Court and insisted that the controversial questions of the day be left to state legislatures. Unwilling to submit to the egalitarian mandates of the federal courts, white Southerners used the institutions of state government to challenge them. Segregationists in Alabama, for instance, amended the state’s constitution in 1956 to clarify that the state was not obligated to provide an education to its residents, thereby enabling the state to close its public schools rather than integrate them.106 Southern governors and congressional representatives also pledged to fight desegregation. This resistance was quite effective. Desegregation in the first decade after Brown v. Board of Education107 was notably sluggish, and the Court proved reluctant to follow this opinion with other equally robust civil-rights rulings for another decade.108 This well-known instance of conservative resistance to the Court, along with a more recent history of conservative attacks on judicial policymaking, has understandably rendered many on the political left reluctant to endorse challenges to the Court’s supremacy.109

The political reaction to Roe v. Wade followed a similar pattern. In response to the Court’s declaration of a right to abortion, Alabama, Tennessee, and West Virginia all adopted state constitutional amendments stating that there was no right to an abortion.110 State legislatures, too, pushed the boundaries of federal doctrine, enacting a variety of limits on abortion access, including mandatory ultrasound viewings, multiday waiting periods, and targeted regulation of abortion providers.111 These measures were state-level attempts to limit the impact of Roe and narrow the protection afforded by Planned Parenthood v. Casey;112 they were, in other words, attempts to replace court-created protections with different, electorally popular policies. They demonstrate that de-judicialization is by no means a progressive phenomenon and that this form of politics is often at odds with notions of rights as judicially enforced moral trumps on majoritarian policy preferences.

However, one lesson from examining de-judicialization efforts from very different periods in U.S. history is the recognition that struggles over the judiciary’s ability to influence policy are neither new nor inherently conservative. Progressive aims have, at other times, been at odds with judicial power. When courts have advanced conservative policies, the left has used state constitutions to wrest policy choices from the judiciary.

In each of the examples we offer in this Essay, state constitutions de-judicialized a conflict by constraining the influence of a state’s judiciary. State constitutions have less capacity to constrain the federal judiciary. However, they may be able to contain federal courts’ policymaking power at least to some degree by pushing back against federal constitutional doctrine. This, in turn, tests the limits of these doctrines and ultimately creates conditions under which the U.S. Supreme Court may decide to step away from, or at least not step further into, a contentious policy area. Massive resistance to the Court’s desegregation mandates in the middle of the twentieth century arguably had exactly this effect.113

As control of the federal judiciary changes hands, it is helpful to remember that there was a time (indeed a long time) before federal courts were associated with progressive causes. Pleas for state autonomy have, from the beginning, been linked to the maintenance of slavery and white supremacy, but the argument that states are meaningful political communities that can make consequential political choices is not inevitably or exclusively conservative.114 Our point is certainly not that state constitutions or the project of de-judicialization always support progressive politics. It is merely that organized groups of citizens and legislative supermajorities can deploy state constitutions to limit courts’ ability to influence the outcomes of policy battles. Though we may have come to associate this tactic with conservative projects, it has also served progressive ends, especially when progressives have faced down conservative courts.

Emily Zackin, Associate Professor, Johns Hopkins University, Department of Political Science; Mila Versteeg, Professor of Law, University of Virginia School of Law.