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STATE COURTS CP
STATE COURTS CP ................................................................................................. 1
State Courts – 1NC ................................................................................................ 2
SOLVENCY
State Courts Solve Poverty...................................................................................... 4
State Courts Solve Poverty...................................................................................... 6
State Courts Solve Poverty...................................................................................... 8
Solve – PRWORA Restrictions.................................................................................. 14
Key to Social Change .............................................................................................. 15
Solve – Political Representation of the Poor / Democracy ............................................. 16
Exceed Federal Rights Protections ............................................................................. 18
Solve – International Human Rights Law ................................................................... 20
Solve – International Human Rights Law ................................................................... 22
Solve – International Human Rights Law ................................................................... 24
Solve International Human Rights ............................................................................ 26
Solve - International Human Rights ......................................................................... 28
ANSWERS TO:
AT: State Judges Lack Experience - Human Rights Issues ............................................ 30
Can Rule on Customary International Law .................................................................. 31
Can Rule on Customary International Law ................................................................. 33
AT: B’lash Against State Court Interpretations of IL .................................................. 34
AT: Supreme Court will Strike Down State Courts ..................................................... 35
AT: Federal Rationality Review Blocks State Courts .................................................... 37
AFF. ANSWERS
State Courts Don’t Solve ...................................................................................... 39
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State Courts – 1NC
Text: The 50 State Supreme Courts should rule that
{the plan}, and state
legislatures should enforce these decisions of the courts.
State courts have the authority to establish rights to welfare for persons in poverty- the federal
Constitution is not a barrier
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law (Robert Doughten, Gonzaga Law Review,
“Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions to
Satisfy International Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
State courts have the ability to establish a positive right to general assistance. n64 This ability is not
hindered by the Federal Constitution's failure to grant positive rights. n65 The Federal Constitution provides
only a "minimal floor of guarantees for individual rights at the state level." n66 State courts are free to
increase individual rights in their state, noting how the textual base of their state constitution and
traditions of their state establish a right to minimum levels of welfare and shelter. n67
Numerous states already provide a positive right to free public education, since most state constitutions
contain explicit guarantees that all children have access to education.
n68 For example, in Edgewood Independent School District v.
Kirby, n69 the Texas Supreme Court interpreted its constitution to provide a guarantee for an "efficient" education system, meaning that a school district need not only rely on
[*432] local property taxes in funding education. n70 The prior method of funding education in Texas resulted in the richest school districts in Texas being able to invest thousands
more dollars per student than poorer districts. n71 The Texas Supreme Court ordered the state legislature to remedy the inefficient taxing system. n72 As a consequence of the
ruling, the state legislature enacted an appropriate funding law which remedied the constitutional violation. n73
States have determined that where state constitutions provide a guarantee to education, the legislature is obligated to use its power to achieve the guarantee. n74 Whether or not
the legislature is adequately meeting these needs is not a political question. n75
State constitutional welfare provisions should be
interpreted similarly to the guarantees of adequate education.
Additionally, State courts rights protections create a more sustainable international rights model,
preventing global civil wars over rights conflicts
Kincaid 95 - Professor of Government and Director of the Meyner Center for the Study of State and Local
Government, Lafayette College (John Kincaid ‘FOREWORD: THE NEW FEDERALISM CONTEXT OF THE NEW JUDICIAL
FEDERALISM’ 26 Rutgers L. J. 913, Lexis)
Given that it is increasingly necessary to think globally while acting locally, it is pertinent to suggest that
this American experience with the new judicial federalism, however muddled, may have useful implications for
an emerging federalist revolution worldwide. n132 This potential utility lies primarily in the concept of
independent and adequate state constitutional powers that enable constituent governments to protect rights
not available from a national government, thereby providing multiple and potentially competing forums for
citizen access.
The new judicial federalism shows that rights protection cannot be entrusted to a monopoly guardian, whether it be the national government or each
constituent government acting monopolistically and autonomously within its jurisdiction. If the American historical experience has been one of overcoming state tyrannies against
individual rights, the historical experience of much of the rest of the world has been one of overcoming central government tyrannies against individual rights. The new judicial
federalism, moreover, is situated at a critical intersection between individual rights and local autonomy, a matter of increasing importance and conflict in the post-Cold War era.
International rights advocates, influenced by the U.S. Supreme Court model of rights nationalization, have sought to internationalize rights. They have focused almost exclusively on
international and [*945] national rights forums, largely ignoring regional and local forums. However, the centrifugal forces of class, race, ethnicity, religion, and language suggest that
rights principles must also be lodged securely in regional and local forums where individuals daily experience the benefits and abuses of government. International forums have advanced
rights ideas and provided beacons for oppressed peoples, but they remain legally weak and practically inconsequential for most individuals. The prospect of a world court performing
rights functions analogous to the Warren Court for five billion people might make for a good Star Trek episode, but it is not within reach of our pre-warp civilization.
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Most national courts are better at ignoring or abusing rights than protecting rights. Yet, even where democratization produces demands for judicial protections of rights, unitary
democratic systems with a single supreme court erected atop a pluralistic polity are buffeted by countervailing universalistic conceptions of rights and justice held by democratic
cosmopolitans and particularistic conceptions of rights and justice held by the diverse communities that make up the polity.
Additionally, prevailing American
conceptions of individual rights, particularly their individualistic foundation, contradict the communal tenets
of many cultures and are regarded in some quarters as Western cultural imperialism,
much like American social conservative
reactions to Roe v. Wade n133 as liberal cultural imperialism. The advancement of human rights, therefore, entails not only a struggle against reactionary, undemocratic governments,
but also a debate among cultures and values in a very pluralistic world.
The new judicial federalism can perhaps contribute to this debate by confronting the difficult question of which rights should be treated as fundamental, universal, and uniform, and
which rights can be subject legitimately to variation among communities of people holding diverse values. For most Americans, prohibiting racial discrimination in any jurisdiction is a
fundamental, uniform rights requirement. But do police searches of citizens' curbside garbage fall into the same category? Also, the new judicial federalism suggests a democratically
based process for rights decision-making in which more than one supreme court or legislative forum is available to advance rights under conditions of human diversity. Furthermore,
the new judicial federalism allows rights not protected by the national government to be protected at least in
[*946] some regional and local jurisdictions. Nationally unprotected rights may also include emerging rights, such as the right to die. Americans, for example, have gradually
embraced this general concept, but have not yet formed a legal and ethical consensus around it. n134 Hence, we have state-by-state legislative and judicial efforts to define this
right.
This may be an important consideration because efforts to achieve, through unitary national institutions,
uniform rights protections comparable to contemporary international standards may generate so much conflict
in some emerging pluralistic democracies as to produce violence, political paralysis, and uniform non-rights
protection. The violence generated by Roe v. Wade n135 in the United States, for example, is mild
compared to the violence generated by socially sensitive rights issues in many other nations where social
fissures are cultural chasms.
Democratic nation-building is, in part, a consensus-building process because sovereign citizens have diverse and conflicting conceptions of rights and justice.
It is unrealistic,
and perhaps counterproductive, therefore, to expect every emerging pluralistic democracy to begin this
process with levels of national rights protections that were achieved by Americans and some other Western
democracies only after two or more centuries of conflicting and periodically violent consensus-building. Many
emerging democracies have adopted grandiose bills of rights based on Western democratic models, but judicial interpretations and actual
government protections of those rights often remain distant from the daily lives of most citizens.
The new judicial federalism, however, suggests a model that would enable rights advocates to continue
pressing for vigorous national and even international rights protections, while also embedding in regional
constitutions and local charters rights that cannot be embedded in the national constitution,
effectively enforced by
the national government, or enforced only at minimal levels. Such an arrangement would produce peaks and valleys of rights protection within a nation, but this rugged rights terrain
is surely preferable to a flat land of minimal or ineffectual national rights protection. The peak jurisdictions can function, under democratic conditions, as rights leaders for a levelingup process.
In an emerging democracy culturally hostile to women's [*947] rights, for example, such an
arrangement could embolden at least one subnational jurisdiction to institutionalize women's rights, thus
establishing a rights peak visible to the entire society without plunging the nation into civil war or back into
reactionary authoritarianism.
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State Courts Solve Poverty
States should solve federal failure to protect the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
Positive rights demand that the legislature protect the interests of the needy. "Food and shelter are no
longer merely aspirational goals of political justice; they are instead a part of the constitutional fabric and a
nondiscretionary feature of the legal order." n208
International treaties and international human rights law dictate that nations have a duty to provide
minimum welfare guarantees to the needy. n209 It is time for the United States to acknowledge its duty
to serve the poor. Montana and New York are great examples of states which have taken steps to satisfy
international norms of human decency through protecting the positive rights of the poor on the state level.
State constitutions containing a positive right to public assistance and shelter ensure that every person in
their state is respected and provided for. It is evident that states are not limited by the Federal
Constitution's failure to protect the poor. States can and must provide greater protection for the needy
when negative rights have failed to fill everyone's bowl.
State courts can best protect the interests of the poor
Rava, 98- First place winner in the 1998 Student Writing Competition on State Constitutional Law,
sponsored by Temple Law Review and the National Association of Attorneys General. A.B., 1991, Harvard
University; J.D., 1998, Northwestern University School of Law. Law Clerk to the Honorable Richard D.
Cudahy, United States Court of Appeals for the Seventh Circuit.
(William C. Rava, Temple Law Review, “State Constitutional Protections for the Poor,” Fall 1998, LexisNexis Academic)
Approaching the issue from a different perspective, several commentators have noted that the other player
in our federal system - the states, with their own constitutions and courts - might also play an active role
in guaranteeing assistance for the needy. Some of these scholars have argued that broader systemic
differences between the state and federal courts might result in a more vibrant state constitutional welfare
jurisprudence. n29 Still others have relied on differences in the state constitutional texts to support their
arguments that states can best protect the interests of the poor. n30
State constitutions are, of course, different than the Federal Constitution. They are concerned more with
the details of governance n31 and include many provisions that the Framers of the Federal Constitution
would certainly have considered legislative by nature, not of constitutional import. n32 These structural
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[*547] differences, of course, do not render state constitutional guarantees any less important than their
federal counterparts. Indeed, state constitutional protections for individual rights, because they can go
beyond the floor established by Supreme Court interpretations of the Federal Constitution, might be more
important guarantors. n33 Many state constitutions also expressly protect specific rights not provided for in
the Federal Constitution. n34 Some state constitutions, for example, include explicit guarantees for the
needy. n35 With the devolution of welfare law, state court interpretations of these state constitutional
provisions gain added importance.
Provision of welfare and equal rights is a state – not federal – responsibility
Rava, 98- First place winner in the 1998 Student Writing Competition on State Constitutional Law,
sponsored by Temple Law Review and the National Association of Attorneys General. A.B., 1991, Harvard
University; J.D., 1998, Northwestern University School of Law. Law Clerk to the Honorable Richard D.
Cudahy, United States Court of Appeals for the Seventh Circuit.
(William C. Rava, Temple Law Review, “State Constitutional Protections for the Poor,” Fall 1998, LexisNexis Academic)
Goldberg represented the high-water mark for entitlement theory, however; the Borkian view that there was
no positive federal right to welfare was to ultimately prevail.
n66 Since Goldberg, the Court slowly has cut back on granting state poverty
legislation any preference. In Dandridge v. Williams, n67 for example, the Court upheld a Maryland statute limiting federal grants to two hundred fifty dollars per family per month.
n68 Although Goldberg guaranteed procedural safeguards, the Dandridge Court refused to second-guess the legislature's substantive aid determination. n69 So long as the legislature
had a reasonable basis to enact the social welfare statute, it would be held constitutional. n70 After Dandridge,
the Court has, with few exceptions,
shown little interest in intervening on behalf of the poor; welfare statutes no longer receive strict judicial
scrutiny. n71 The Court's retreat from - or at least failure to extend - application of heightened equal
protection analysis continued. In Matthews v. Eldridge, n72 the Court held that no hearing was required
prior to the termination of social security benefits. n73 The Court drew fine factual distinctions in
distinguishing the case from Goldberg, marking another clear step back from the expansive entitlement theory
embraced by the Goldberg court. n74
At the same time that the federal courts have been withdrawing from their role as protectors of the poor,
Congress has moved to give states greater [*551] authority in welfare program implementation. n75 The
devolution of welfare merely continues a recent trend of federal pull back from care for the needy. n76
Since the enactment of the PRWORA in 1996, the states - and perhaps the state courts - once again play
a central role in welfare administration.
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State Courts Solve Poverty
State courts have the burden to interpret ambiguous state constitutions
Rava, 98- First place winner in the 1998 Student Writing Competition on State Constitutional Law,
sponsored by Temple Law Review and the National Association of Attorneys General. A.B., 1991, Harvard
University; J.D., 1998, Northwestern University School of Law. Law Clerk to the Honorable Richard D.
Cudahy, United States Court of Appeals for the Seventh Circuit.
(William C. Rava, Temple Law Review, “State Constitutional Protections for the Poor,” Fall 1998, Lexis-Nexis Academic)
There is, then, textual support in twenty-three state constitutions for the [*561] claim that the state has
an obligation to care for its indigent residents. n157 None of these constitutional clauses, however, is
perfectly clear. In almost all twenty-three states, the state legislatures must take some action to provide
state assistance for the needy. n158 Exactly what the legislature must provide and for whom it must be
provided is largely unspecified.
n160
n159 Many of the provisions use a combination of mandatory and permissive language, making the scope of the command unclear.
The provisions also use numerous undefined terms, such as "poor," "needy," "care," and "provide." n161
The courts must interpret these vague and ambiguous clauses.
On the one hand, state courts could subject welfare statutes to searching
scrutiny, closely supervising the substantive policy decisions reached by the legislature. Under such a regime,
guaranteeing welfare rights.
state courts could play an active role in
On the other hand, state courts could employ a minimally rigorous standard of review, allowing the legislature wide discretion to meet
its constitutional mandate. There are also innumerable options in between these poles.
The courts themselves must ultimately decide whether
they will closely police the definitional decisions reached by the legislature, but only rarely have they been
called upon to interpret their constitutions' welfare rights provisions.
n162 This subpart explores some of this limited state
constitutional welfare rights jurisprudence, concluding that despite the differences in constitutional texts, the courts take remarkably similar approaches to interpreting the welfare
rights provisions.
Welfare and affirmative rights are state, not federal, concerns
Hershkoff, 99- Associate Professor of Law, New York University School of Law
(Helen Hershkoff, Harvard Law Review, “Positive Rights and State Constitutions: The Limits of Federal Rationality Review,” April
1999, Lexis-Nexis Academic)
Almost thirty years ago, the Supreme Court refused to find a right to welfare in the Federal Constitution,
contending that the "administra [*1133] tion of public welfare assistance" raises "intractable economic, social,
and even philosophical problems" that "are not the business" of the Court. n2 Since then, the Court has
rejected constitutional claims to housing, n3 to public education, n4 and to medical services, n5 on the view
that the government does not owe its citizens any affirmative duty of care. n6 Endorsing a view of the
Federal Constitution as a "charter of negative rather than positive liberties," n7 the Court has resisted
acknowledging any "affirmative right to government aid, even where such aid may be necessary to secure life,
liberty, or property interests of which the government itself may not deprive the individual."
n8 Although some
commentators question the normative basis for the Court's approach, n9 they generally agree that a fed [*1134] eral constitutional welfare right, even if recognized, would not be
judi [*1135] cially enforceable because of concerns about federalism, separation of powers, and institutional competence. n10
Consistent with the states-as-laboratories metaphor, n11 the constitutions of the fifty states present a very
different framework in which to analyze whether government may stand by and ignore the hunger and
homelessness of its citizens. Unlike the Federal Constitution, every state constitution in the United States
addresses social and economic concerns, and provides the basis for a variety of positive claims against the
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government. n12 Such positive rights range from the right of children to receive free public schooling, n13 to
the right of workers on public construction projects to receive "prevailing" wage rates. n14 In particular,
more than a dozen state constitutions provide explicit protections for the poor .
n15 Although some commentators treat these
state constitutional poverty clauses as cre [*1136] ating judicially enforceable rights to welfare, n16 and not merely as aspirational norms, n17 state court judges nevertheless have
shown reluctance to recognize corresponding state duties. n18 Instead, faced with challenges to the adequacy or availability of welfare assistance programs, state courts follow the
trend of post-Lochner federal constitutional law and accord great deference to legislative decisions. n19
The poor are a “forgotten group” in the democratic system and the Supreme Court- state action is key
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga Law
Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions
to Satisfy International Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
[*426] The recent trend in cutting welfare benefits indicates that the poor in the United States cannot
rely on the democratic process to protect their interests. In fact, the poor have been categorized as a
"forgotten group" who are virtually invisible in a democratic system
primarily driven by the desires of the wealthy. n30 Michael
Harrington, a prominent poverty scholar, commented on the invisibility of the poor in his acclaimed work "The Other America" when he wrote,
"that the poor are
invisible is one of the most important things about them. They are not simply neglected and forgotten as in
the old rhetoric of reform; what is much worse, they are not seen." n31
Voting patterns demonstrate it is unlikely that the majority of Americans will support minimum welfare
guarantees. n32 In most elections, it is the wealthy who vote and they refuse to vote against their own
economic interests. n33 In addition, the American political system is overwhelmingly influenced by financial
donations, which the poor are unable to use to gain political clout.
n34 As a result, politicians will continue to cut taxes and decrease
welfare benefits as long as the majority of their constituents are middle-class Americans who have no immediate reason to be aware of the necessity of providing general assistance.
This economic self-interest has left America's poor forgotten, with no voice in the political system.
In times of economic prosperity, there are only three reasons society would care about the chronically poor - fear, altruism, or enlightened economic self-interest. n35 It [*427] is
unlikely any of these motives will ensure that the needs of the poor are met. n36 Without democratic safeguards,
it is essential that state constitutions
establish positive rights for the poor including shelter and other services, to prevent welfare benefits from
being voted away by a disinterested, wealthy middle class.
Neither does the Federal Constitution provide a mechanism to protect the poor. In the 1960s and 1970s,
lawyers for the poor attempted to affirm positive rights to basic needs in the United States Constitution.
n37 Their efforts were not successful. n38 Over thirty years ago, the United States Supreme Court refused
to find a right to welfare in the Constitution, ruling that this was not a proper consideration for the
Court. n39
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State Courts Solve Poverty
(Doughten continues)
The Court has refused constitutional claims to housing, public education, and medical services, declaring
repeatedly that the government does not owe its citizens any affirmative duty of care. n40
The Constitution grants negative rights, but not positive rights. n41 In federal terms, the state and federal government are only
prohibited "from placing unreasonable restrictions on an individual's right to ... obtain ... safety or happiness." n42
This focus on negative rights allows
the Court to rule that there is no basis for an affirmative right to government aid,
even when such aid is necessary to
secure basic rights the government itself may not deprive the individual. n43 It is permissible for the "state to stand idly by while citizens fall into indisputably unsafe
circumstances, piously assuring such citizens that it is not interfering with their right to pursue and obtain safety." n44
As numerous Americans are unable to access shelter and meet their basic needs, it is evident that the
democratic process and Federal Constitution do not provide adequate safeguards to protect the interests of
the poor. Consequently, it is imperative that individual states take the initiative to protect the poor by
guaranteeing access to shelter and minimum levels of general assistance in their state constitutions. [*428]
An affirmation of positive rights is especially necessary in modern economic times, and in respect to
international human rights law, such affirmation should demand a right to adequate standards of living for
all.
State constitutions create a judicially enforceable right to aid for the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002
(Robert Doughten, Gonzaga Law Review,
“Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions to Satisfy International
Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
Over a dozen state constitutions have explicit provisions mandating their state to protect the interests of
the poor and those with similar financial hardships. n49 This [*429] textual base enables state court judges
to find that the Equal Protection or Due Process Clause in their state constitution guarantees certain
welfare benefits to the poor. n50 Unlike federal judges interpreting the Federal Constitution, state
constitutional welfare provisions, arguably, create a judicially enforceable right to various forms of public
assistance. n51
New York serves as the primary example of a state using its state constitution to establish a positive right
to government aid.
n52 Article XVII of the New York State Constitution states, "the aid, care and support of the needy are public concerns and shall be provided by
the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." n53 On the basis of Article XVII,
New
York courts have prohibited the state from refusing public assistance to needy children based on evidentiary
requirements that "have nothing to do with need," n54 disallowed the state from excluding or reducing
benefits to [*430] particular groups, such as the disabled to reduce administrative costs, n55 and even
called for the state to increase public assistance to ensure that children in New York state are provided with
an adequate education. n56
As seen in New York, state constitutional text affirming a duty to help the poor establishes a number of obligations upon the state. First, state constitutional welfare provisions
create a constitutional mandate for the state to provide minimal levels of general assistance to the poor. n57 Second, state constitutional welfare provisions make the state
responsible for meeting the needs of the poor, rather than local communities and private groups providing welfare assistance within the state. n58 Third, a textual base for welfare
produces a "principle of social citizenship that recognizes the community's shared responsibility for the well-being of its members." n59 In summary
, state
constitutional welfare provisions create a judicially enforceable right to general assistance. This allows state
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court judges to interpret their state constitution to call for state courts to work with other branches of
government to ensure a right to shelter and that other general assistance benefits are provided to the poor.
n60
A prominent example of the importance of having an explicit constitutional base to protect and/or grant rights is Justice Marshall's use of the Federal Equal Protection Clause to
protect voting rights. n61 Without the Federal Constitution containing numerous democratic concerns, it is unlikely Justice Marshall could have found that the Equal Protection
Clause protects voting rights. n62 Likewise,
state constitutional welfare provisions allow a similar triggering of equal
protection and due process [*431] protections, when a state has failed to provide a humane standard of
living to its citizens. n63
Critics are wrong- state courts traditionally rule on positive rights claims and assure welfare provision
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002
(Robert Doughten, Gonzaga Law Review,
“Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions to Satisfy International
Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
Critics opposed to establishing positive rights in state constitutions argue that positive right claims violate
principles of federalism and democracy. n76 However, the process of judicial interpretation is not significantly
different whether assessing a positive or negative right. n77 As a consequence, state courts do not overstep
their bounds any more "when defining the parameters of required legislative action than when defining
prohibitions on legislative behavior." n78
A right to general assistance and shelter in a state constitution should be understood as merely limiting a
legislature's right to eliminate general assistance benefits to a level where they do not satisfy the promises
contained in the state constitution. It is the state court's proper role to determine the parameters of the
state constitution and interpret what the constitution guarantees to its citizens. n79 Helen Hershkoff, a
prominent positive rights scholar, provides a clear example of what a positive right in a state constitution
establishes:
Eve says to Adam: "Spend Thursday with me in New York. Travel here however you like." Eve is directing Adam to rendezvous with her at a designated time and place. He can
decide how best to get to New York in time for the Thursday meeting. But suppose Adam decides on Wednesday that he wants to walk, and sets out that night from Boston.
Arriving two weeks later, Adam cannot really claim to have met Eve's request. His [*433] discretion to choose how to travel is subordinate to the overall purpose, namely, to meet
Eve in New York on an appointed day. n80
Like Adam, a state legislature is free to choose the means by which they can meet their constitutional
obligation. However, Eve, being the state court, is certainly able to ascertain when Adam has failed to meet
his objective.
When a court determines that the legislature has not provided for the general welfare of their citizens, the
court simply requests that the legislature find an appropriate remedy to satisfy the promises contained in
the state constitution. n81 The court does not instruct the legislature on the best means to satisfy their constitutionally mandated obligations. n82 The legislative
and executive branch are much better suited for determining the allocation of funds, since the courts do not have the necessary resources and skills to make these determinations.
n83 This allows the legislature, social services, and welfare recipients to work together to create solutions to poverty and access to shelter. n84 In contrast,
a valid
negative rights claim completely strikes down a statute created by the legislature, which is much more
tyrannical. n85
State Courts Solve Poverty
(Doughten contnues)
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Another objection against enforcing positive rights is that such judicial action intrudes into the role of the legislature. n86 By granting positive right claims, many would argue the
courts are acting as legislators, not as interpreters of the law. n87 However, on a state level,
the judiciary is acting in its traditional and proper
role when assuring the legislature lives up to its duties enumerated in the state constitution. n88
The separation of powers doctrine was formed to prevent governmental tyranny by dividing power between three branches and establishing a system of checks and balances. n89
There was also a functional aspect to separating power to promote efficiency. n90
[*434] State courts failing to enforce positive constitutional guarantees typically argue from a formalist's viewpoint of the separation of powers doctrine. n91 Formalists believe
each branch has specific delegated duties. n92 When there is any aberration from the explicit duties, formalists allege a separation of powers violation has occurred. n93 This
approach disallows the court from requiring the legislature to do anything. n94
However, state courts function differently than federal courts in regard to policy and law-making. n95
policy and participating in making laws.
State courts have a tradition of setting public
n96 A brief overview of state tort, contract, property, and criminal law enables one to make this discernment.
n97 In addition, as former Justice Hans Linde of the Oregon Supreme Court explains, "state courts settle contests over public offices, pass on the propriety of proposed public
expenditures and even of proposed constitutional amendments, often at the suit of mere "taxpayers.'" n98 This allows state court judges to have a "higher comfort level" when
participating in activities that verge on policy making. n99
Judicial review is also stronger on the state level than on the federal level. Constitutional framers, on the
state level, wrote provisions bolstering judicial review of the legislature.
n100 In addition, state constitutions were amended to
provide for the election of judges n101 and lower executive branch officials. n102 Only four states do not provide for the election of lower executive branch officials, such as the
state's attorney general, n103 and 41 states elect at least some of their state judges. n104
An elected judiciary provides increased legitimacy to
a state court reviewing the actions [*435] of the state legislature and lessens any counter-majoritarian
arguments. n105 By allowing for the election of judges, states decreased the independence of the judicial
branch and made them accountable to the electorate. n106 This allows state courts to play an increased role
in determining the constitutionality and rightness of the legislature's actions. n107
The separation of power arguments posed by opponents of positive rights, on a state level, are invalid. The
judiciary is acting in its traditional and proper role when ruling on positive right claims and assuring the
legislature satisfy state constitutional welfare provision.
State courts solve best- can be more progressive and use international human rights laws
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002
(Robert Doughten, Gonzaga Law Review,
“Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions to Satisfy International
Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
Federal rationality review, inappropriately, starts from a presumption of constitutionality. n124 The proper
approach to positive right claims shifts the burden of proof to the state to justify its legislative enactments
as the appropriate means to satisfy the aspirations of the state constitution. n125 Therefore, the proper
question is not "How does this policy burden a constitutional right?" but rather, "How does this policy
further a constitutional right?" n126
State courts are less burdened than federal courts by "institutional and prudential constraints." n127
Therefore, they can apply a more progressive application of the law than federal rationality review to
positive right claims. n128 This will allow state courts to ensure that the promises contained in their state
constitutions are honored. n129 Moreover, state courts provide a forum to use international human rights
law to further bolster support for a positive right to general assistance and access to shelter for the poor.
n130
State courts solve affirmative welfare rights
Hershkoff, 99- Associate Professor of Law, New York University School of Law
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(Helen Hershkoff, Harvard Law Review, “Positive Rights and State Constitutions: The Limits of Federal Rationality Review,” April 1999, Lexis-Nexis
Academic)
[*1156] By contrast, although there is no prototypical constitution, a significant number of state
constitutions include an explicit provision of social and economic goals, among them public assistance for the
indigent. As Daniel J. Elazar explains, "state constitutions are important determinants of who gets what,
when, and how in America because they are conceptual and at times very specific statements of who should
get what, when, and how." n134 In this sense, state constitutions resemble regulatory statutes because
they prescribe social and economic policies, expressed in the language of positive rights, while according the
legislature instrumental discretion to carry out the constitutional mandate. n135 These positive rights are
not simply structural limits on governmental power; they are also prescriptive duties compelling government
to use such power to achieve constitutionally fixed social ends.
By committing the state to explicit public goals, state constitutions compel state legislatures to enact
policies that carry out these goals, and thus alter the terms of political discourse. n136 Bound by an oath
of office, state legislators must act in a situation of constrained discretion. Food and shelter are no longer
merely aspirational goals of political justice; they are instead a part of the constitutional fabric and a
nondiscretionary feature of the legal order. n137 A shortfall in enforcement may not simply be remitted to
politics; it instead implicates the judiciary in a collaborative process of elaborating the constitutional
mandate. Social and economic concerns of this sort, although viewed by Article III courts as political
questions, as within legislative discretion, or as otherwise nonjusticiable, are in many ways standard fare for
common law courts. Unlike federal courts, state courts are frequently counted on to resolve constitutional
questions that implicate the courts "directly in day-to-day political issues" and that encourage them to act
as interdependent members of state government. n138 As former Justice Hans Linde of the Oregon
Supreme Court explains, "state courts settle contests over public offices, pass on the pro [*1157] priety of
proposed public expenditures and even of proposed constitutional amendments, often at the suit of mere
"taxpayers.'" n139 Rationality review as currently exercised by Article III courts, however, is designed to
block the judiciary's policymaking role and to separate judges from the "political thicket," n140 thereby
disabling courts from performing an important institutional role. n141
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State Courts Solve Poverty
According to state constitutions and international human rights, state courts can protect the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
Positive rights are a tool Americans can use to guarantee that no one is left out in the cold. An established positive right to general assistance disallows the legislature from voting
away welfare benefits when sections of the population are unable to provide for their basic needs. Numerous
state constitutions provide explicit textual
[*423] support for establishing a positive right to minimum welfare guarantees and shelter. n8 These states'
constitutional welfare provisions allow courts to establish a judicially enforceable right to public assistance. n9
Furthermore, the United States, being party to certain international covenants and treaties, increases a
state court's ability to interpret its state constitution to establish positive rights to internationally
recognized norms of human decency. n10
This article will make clear the importance of establishing a positive right to minimum
welfare guarantees and shelter. Second, this article will review the unique ability of state
constitutions to grant positive rights and apply heightened scrutiny to claims alleging
deprivations of general assistance and shelter. Third, this article will demonstrate how state
courts can use international human rights law to protect the poor.
Finally, this article will conclude
with a brief examination of two cases - Tucker v. Toia n11 and Butte Community Union v.
Lewis n12 - which illustrate positive right claims based on the state constitutions of New
York and Montana.
State courts should review cases involving deprivation of rights to assistance for the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
State constitutions are the proper tool to implement a positive right to minimum welfare guarantees. State
constitutions provide textual support for granting a positive right to public assistance and access to shelter.
n45 In addition, many states constitutions' legislative histories, along with public attitudes toward providing
shelter and general assistance benefits within the state, further bolster positive right claims to public
assistance. n46 Moreover, states are better able to deal with the separation of power issues raised by
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positive right claims. n47 As such, state courts are capable of providing a heightened level of review to
claims asserting deprivation of rights to shelter and general assistance. n48
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Solve – PRWORA Restrictions
State courts can strike down PRWORA’s applications to their states
Proesch, 07 - J.D. candidate 2007, Georgetown University Law Center (Micala, “No One Too Poor to
Weather the Storm -- A Critique of Existing Welfare Policy,” 5 Geo. J.L. & Pub. Pol'y 285, Winter, lexis)
In Weston v. Cassata, welfare benefits recipients brought a class action against the state of Colorado and
Denver County challenging the limitation of their benefits through sanctions issued under a pre-termination
clause of the state's implementation of TANF. n63 The court held that the sanctions notices that were
issued under the pre-termination clause denied welfare recipients due process of law. n64 Here, the court
made the important finding that the "no entitlement" provision of PRWORA n65 did not mean that TANF
recipients did not have property rights in the benefits they received. n66 This finding represents state
courts' willingness to interpret both state and federal law in ways sympathetic to welfare benefit seekers.
In Sanchez v. Department of Human Services; a woman who had moved from Puerto Rico to New Jersey
challenged the New Jersey welfare program Work First New Jersey after receiving benefits that were
substantially less than those received by people who had lived in New Jersey for more than twelve months.
n67 The New Jersey Superior Court held that the Work First New Jersey program's residency provision was
unconstitutional because it violated a person's fundamental right to travel and the equal protection clauses
of the New Jersey Constitution and the U.S. Constitution by discriminating against people who have not
lived An the state for at least twelve months without a legitimate state purpose. n68 This case is
interesting in three respects: first, it represents a case where a state law is challenged but the state court
implies that the federal law upon which it was based may also be unconstitutional; second, it represents the
unusual occurrence where a court concludes that a statute violates equal protection under rational basis
review; and third, it recognizes a right to travel which is not explicitly granted in the constitution, giving
hope that it may recognize other implied rights, such as the right to minimum subsistence, in the future.
In Sanchez, one of the defenses New Jersey used for implementing its residency-based, two-tiered welfare
system was that it was authorized by Congress under the provision of PRWORA stating:
A State operating a program funded under this part may apply to a family the rules (including benefit
amounts) of the program funded under this part of [*295] another State if the family has moved to the
State from the other State and has resided in the State for less than 12 months. n69
However, the court reasoned that "Congress may not authorize the states to violate the Equal Protection
Clause," and said that if the constitutionality of the PRWORA provision were at issue in the case, the court
would find it unconstitutional. n70 Though this court could not rule that the federal law violated the equal
protection clause, its opinion could spur awareness of the possible unconstitutionally of residency provisions in
other states so that other parties could feel confident bringing forth cases challenging them.
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Key to Social Change
State courts will help build social change – even if the challenges fail
Proesch, 07 - J.D. candidate 2007, Georgetown University Law Center (Micala, “No One Too Poor to
Weather the Storm -- A Critique of Existing Welfare Policy,” 5 Geo. J.L. & Pub. Pol'y 285, Winter, lexis)
Advocates have challenged state welfare laws in many arenas including family planning services, homelessness,
education, and discrimination in fund administration. n57 While parties traditionally filed these types of cases
in federal court, they are increasingly turning to state courts to challenge state programs. n58 Even if
courts do not hold state laws unconstitutional, they can still help build and maintain political and public
support by issuing opinions sympathizing with the needs of people living in poverty.
In Sneed v. Saenz, n59 parents brought suit challenging a provision of California's welfare statute, titled the
California Work Opportunity and Responsibility to Kids Act. While the court ruled that the statute was
correctly interpreted with respect to the Sneeds' income, it used an abundance of language expressing its
sympathy to poor people and willingness to help them. The court said "adequate support for all of the
needy children of California's working poor is a priority," n60 and that it supports programs which "try to
break the cycle of welfare dependency and ensure economic security and self-sufficiency for California
families." n61
Some state courts have been willing to go farther and issue opinions that criticize state or federal welfare
laws and even invalidate state welfare laws that
[*294] deny equal protection, deny due process, or
impinge on a fundamental right. n62
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Solve – Political Representation of the Poor / Democracy
State courts enhance democratic participation greater than federal courts
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
One must fully understand the goals of a federalist constitution in order to appreciate the link between
IHRL and state courts. The Founding Fathers designed this system with three complementary objectives in
mind: "(1) 'to secure the public good'; (2) to protect 'private rights'; and (3) 'to
[*187] preserve the
spirit and form of popular government.'" n303 But why did they believe that these objectives would be met
by giving states more power? First, they believed that federalism "assures a decentralized government that
will be more sensitive to the diverse needs of a heterogeneous society." n304 Second, federalism increases
the opportunities for citizen involvement in the democratic processes, making the local governments "more
responsive by putting the States in competition for a mobile citizenry." n305Local governments also help
foster citizen political participation by "providing alternative and perhaps more accessible fora for political
participation than does the federal government." n306 Third, federalism "allows for more innovation and
experimentation in government." n307Litigating IHRL in a conservative state court might, therefore, be
bolstered by raising these federalism justifications to the court.
State judicial review of state welfare would increase the political power of the poor
Hershkoff, 99- Associate Professor of Law, New York University School of Law
(Helen Hershkoff, Harvard Law Review, “Positive Rights and State Constitutions: The Limits of Federal
Rationality Review,” April 1999, Lexis-Nexis Academic)
State judicial review of state constitutional welfare claims would allow the poor to leverage legal activity into
political power. n245 The literature on judicially precipitated reform offers no clear account of the relation
be [*1174] tween court decrees and social change. n246 Nevertheless, by allowing the poor a juridical space,
the state court provides an important point of entry into political life. n247 Commentators thus analogize
the court's function to that of a surrogate "pressure group activity," potentially working to prevent
parochial or special interests from subverting a state's constitutional commitment to its poor. n248 Judicial
review - indeed, the mere threat of litigation - places the claims of the poor "on the table," giving them a
salience that they would ordinarily lack. n249 In addition, judicial articulation of state constitutional goals
can change political discourse as legal actors internalize judicial explanations and keep them in mind as a
matter of course. n250 Judicial review also facilitates productive political activity, "stirring the
governmental entities to action to make sure that issues are addressed and choices made." n251
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Doubts may linger as to whether judicial review will discourage legislators from facing up to their
constitutional responsibilities. Certainly, the availability of judicial review will protect elected representatives
from "taking the heat" for controversial welfare decisions. n252 The usual criticisms of judicial review,
however, carry less force when transported to the state court context. Unlike the federal system, where
concerns about judicial finality may weigh against Article III intervention, maybe the collabo [*1175] rative
and conditional nature of state decisionmaking, combined with the public choice problem, argue in favor of
judicial intervention.
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Exceed Federal Rights Protections
State constitutions can exceed federal minimums
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human Rights,
Notre Dame Law School 2006
(Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING
INTERNATIONAL HUMAN RIGHTS IN U.S. STATE COURT” Lexis.)
States have begun to realize that their state constitutions are often more protective of civil libertiesand
positive rights than the Supreme Court has interpreted the U.S. Constitution to be. Consequently, "many
state supreme courts have become receptive forums for civil liberties arguments that the U.S. Supreme
Court has rejected." n211 For example, in 1991, a Michigan appellate court struck down a voter-approved ban
on state-funded abortions for poor women. n212 The court held that the ban violated the state's equal
protection clause by discriminating against women who exercise their fundamental right to have an abortion.
The court was able to base their holding on the fact that the case concerned provisions of Michigan's
Constitution, which they "are free to read more broadly and analyze differently than those of the federal
constitution." n213 Although the Michigan Supreme Court later reversed this decision, the appellate decision
reflects how [*172] state constitutional rights may be interpreted to be broader than those in the U.S.
Constitution. n214
State courts have recognized a right to education that the U.S. Supreme Court has said does not exist in
the U.S. Constitution. For example, the West Virginia court in Pauley v. Kelly n215 held that education is a
fundamental right. To support its holding, the court cited to the UDHR, which they noted "appears to
proclaim education to be a fundamental right of everyone, at least on this planet." n216 Sixteen years
later, in February 2005, the state of New York found the right to education in their constitution. Justice
Leland DeGrasse of the State Supreme Court in Manhattan ruled that "an additional $ 5.6 billion must be
spent on the city's public schoolchildren every year to ensure them the opportunity for a sound basic
education that they are guaranteed under the State Constitution." n217 Perhaps the more significant part
of the ruling is that Justice DeGrasse "ordered a specific amount of money to be spent on the city's
schools," n218 reflecting one way a court can decide how to properly enforce positive rights. n219
State courts are superior to federal courts, they can exceed federal rights protections for social services and can
be grounded in international human rights law
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
2. IHRL Comports with Justifications for Local Justice
The idea of local justice was so important to the drafters of
the Rome Statute of the ICC that the idea of complementarity was written into it for this very reason. n273 Seeing
that IHRL embodies universal values and norms that are shared by all, local courts have the first chance to do the right
thing and enforce these standards. If the local court fails or refuses to do so, then it is the job of the federal courts
(or an international court) to do it for them.
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States are, in fact, making a comeback. The revival of state constitutionalism in recent decades "was
stimulated by concerns similar to those animating human rights activists - a sense that the federal
Constitution does not fully guarantee basic human dignity, especially in the realm of economic and social
rights." n274It is in these areas of social welfare where state laws surpass federal law, meaning that state
courts are more accessible to claims concerning the needs of their citizens. n275 As Justice Doggett of the
Texas Supreme Court explained, "this is not just the rebellion of the country bumpkins or the provinces
against the center. Rather, it is fundamentally the notion that the states can be a source of new ideas."
n276State courts that have more generous constitutions to work with than do the federal courts do indeed
have much to offer their citizens in terms of implementing their international human rights.
By using state courts to empower themselves with the tools of IHRL, a sense of local ownership can be
created. In the same sense, state [*182] courts are more flexible and able to evolve than federal courts.
The rules that are made in state courts are uniquely local and apply to the people who live in that
state.rights truly begins close to home.
State courts should not model the Supreme Court’s failure to protect the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002
(Robert Doughten, Gonzaga Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State
Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, Lexis-Nexis Academic)
As in New York, the Montana Supreme Court did not feel bound to perform a rational basis review of
legislation that impaired the poor's rights to gain minimum welfare guarantees: "We will not be bound by
decisions of the United States Supreme Court where independent state grounds exist for developing
heightened and expanded rights under our state constitution." n207 Equally, other state courts should not
follow the Federal Constitution's example of failing to protect the poor. Rather, state courts should develop
innovative methods, as Montana did and New York does, to ensure international standards of human decency
are not abridged on the state level.
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Solve – International Human Rights Law
State courts are superior to federal courts in enforcing international human rights
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
VI. Conclusion
In the practical sense, human rights advocates should focus on all levels of government - international, regional, and domestic - in order to have a greater impact
on human rights. n346 Yet because international and regional institutions have proven inadequate to deal with American legal issues, lawyers are left with domestic litigation.
Furthermore,
using state courts to implement international human rights is an avenue replete with possibilities
that do not exist at the federal level. Federal courts, both legally and politically, fail to provide an adequate
forum for litigating IHRL.
Specifically, the legal trend in federal courts is to refrain from enforcing human rights treaties that contain non-self-executing clauses.
Although these treaties can be used as a defense and as an interpretive tool in both state and federal courts, the more substantive laws that can be interpreted using IHRL exist in
state constitutions and statutes. In addition,
relying on IHRL to interpret a state constitution insulates the decision [*195]
from Supreme Court review. As opposed to the limited reach of the four federal human rights statutes,
state courts have more legal routes for implementing IHRL. State courts can find that human rights abuses
occurring in the state or abuses that occur outside the state by a state citizen or corporation violate the
state constitution.
Moreover, our Founding Fathers' rationales for federalism indicate a preference for state courts to respond to the local needs of their citizens, giving
states the opportunity to implement IHRL in ways that affect the day-to-day lives of Americans.
This solution can garner support from both sides of the international debate. Those on the left will support the fact that IHRL is finally being implemented in the U.S. and those
on the right will support the fact that an international body is not judging America; rather, a state judges its own state's compliance with international norms. Of course, the initial
hurdle is to overcome the "prevailing arrogant view that all things American are good and just" n347 and accept the truth that "
state courts are transnational
actors, too." n348International human rights law was designed to pressure nations to honor and respect
human rights through their domestic laws so that everyday life would be an embodiment of these norms.
n349State courts tend to have more of an impact on the lives of ordinary citizens and are therefore the
most appropriate starting point in achieving this goal. Not only will state courtsbe able to add to the IHRL
jurisprudence, but they will also help bring the U.S. into compliance with international human rights
standards.
International human rights treaties provide a basis for state courts to establish a right to assistance for the poor
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
Although not commonly used by state courts, international human rights law establishes a legal obligation for
guaranteeing minimum welfare guarantees and access to shelter. n131 The international consensus is that
every nation has a duty to provide shelter and basic general assistance to everyone in its country. n132
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[*438] The Supremacy Clause of the Federal Constitution explicitly provides that valid treaties signed and ratified by the United States are the "supreme Law of the Land." n133
The Supreme Court, from its inception, has expressed a commitment to enforcing international law: "International law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction." n134 As a result,
international human rights law provides an additional reason for
state courts to interpret their state constitutions to establish a positive right to public assistance. n135
As a member of the United Nations (U.N.), the United States has an affirmative duty to provide for the
poor. n136 The U.N. Charter establishes an obligation upon member nations to promote key human rights.
n137 The Universal Declaration of Human Rights (UDHR) is the primary document concerned with listing the human rights U.N. members are obligated to protect. n138 Under
Article 25(1) of the UDHR, "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and
medical care and [*439] necessary social services." n139 As the court in Beharry v. Reno n140 properly stated: "While the (UDHR) is not a treaty, it has an effect similar to a
treaty. It is a declaration published by the General Assembly of the United Nations "as a common standard of achievement for all peoples and all nations (citation omitted)."
n141 Therefore, as a member of the United Nations, the United States has a duty to respect the rights of
the poor.
The United States is also a signatory to the International Covenant on Economic, Social and Cultural Rights
(ICESCR). n142 A nation that is a signatory to a covenant, such as the ICESCR, must refrain from acts
which would defeat the object and purpose of the covenant. n143 The preamble of the ICESCR establishes
that "the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions
are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and
political rights." n144 Specifically, Article 11 of the ICESCR states that: "The States Parties to the present
Covenant recognize the right of everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous improvement of living conditions." n145
The right for people to be free from want is the foundation of the ICESCR. n146 A state court establishing
a positive right to minimum welfare guarantees respects the United States' obligation not to interfere with
the object and purpose of the ICESCR.
Finally, the United States is obligated to provide basic public assistance to the poor due to their membership
in a number of regional treaties. n147 Both the American Declaration of the Rights and Duties of Man n148
and the American Convention on [*440] Human Rights n149 require member nations to provide basic general
assistance benefits and shelter to their citizens. n150
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Solve – International Human Rights Law
State courts should look to international human rights laws when interpreting state constitutions
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
State courts have a responsibility to consider international human rights norms and other transnational law
in rendering state constitutional decisions. n1 This responsibility is drawn from several sources: the nature of
federalism, the nature of the international system, and individual states' laws and legal history.
Where the United States has a formal obligation to comply with international law, the United States
Constitution's Supremacy Clause requires state courts to consider transnational authority. Indeed, without
subnational attention to human rights norms, the international legal system fails under the weight of the
"implementation gap" between national obligations and their implementation on the state level.
Even absent a formal mandate, however, state courts should consider transnational sources when interpreting
their constitutions.
State court judges may find direct support for considering transnational sources in the constitutional and social history of the provisions being
construed, bringing this approach inside the fold of traditional methodologies of constitutional interpretation. n2
[*360]
Furthermore, transnational law can inform the meaning of state constitutional grants that have no
federal analogues but that are similar to international human rights law and to provisions of modern
constitutions around the world. n3 The United States Constitution, which textually focuses on limiting
government action, may yield no guidance to state courts asked to interpret, for example, the substantive
meaning of positive rights to "health," "education," or "welfare." n4 In such an instance, international norms
articulated in transnational law may be a singularly important guide to the substantive content of the
provisions.
Though courts and scholars have paid significant attention to state constitutional provisions that have no obvious federal analogues in their efforts to establish the
outlines of an independent state jurisprudence, they have seldom considered the role that transnational law might play in judicial review of these provisions. n5
State courts are obligated to implement international human rights law
Davis, 6- Associate Professor, Northeastern University School of Law (Martha F. Davis, New York University
Review of Law & Social Change, “Realizing Domestic Social Justice Through International Human Rights: Part
I: The Spirit of our Times: State Constitutions and International Human Rights,” Lexis-Nexis Academic)
In large part, state courts' obligations to implement international human rights law derive directly from the
[*362] federal system.
The United States Constitution reserves the treaty power and responsibility for foreign relations to the federal government. n9 However,
the United States' federal system reserves significant regulation of entire substantive categories such as
criminal, family, and social welfare law to subnational governments. n10 It follows that when the United
States assents to a treaty or other international agreement, the federal system often demands that
implementation occur on the state as well as the federal level. n11 If states fail to implement international
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treaty provisions that address areas traditionally reserved to them, the United States cannot, as a practical
matter, achieve compliance with the treaty provisions to which it is party.
Notably, the United States' treaty obligations may go beyond treaties' substantive focus and may also incorporate their enforcement procedures. n12 For example, both
the
International Covenant on Civil and Political Rights (ICCPR) and the Convention for the Elimination of All
Forms of Racial Discrimination (CERD) require the availability of judicial remedies for violations. n13 Under
federal jurisdictional constraints, however, judicial remedies will sometimes be available only in state courts.
This might be true, for example, of cases shielded from federal judicial review under the Pennhurst doctrine, which bars federal court adjudication of state law claims for injunctive
relief against the state. n14 Likewise, even if plaintiffs are pressing human rights claims that implicate federal obligations under international law, the federal courts may eschew cases
arising in the family law or criminal law contexts, at least in the first instance. n15 In such situations,
unless there is state court participation in
the procedural as well as substantive implementation of human rights standards, the United States will fall
short of fulfilling its treaty obligations. n16
State courts are the most promising way to secure human rights protections in the US
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
Liberals have historically been opposed to federalism, but federalism might in fact be the lynchpin in securing
human rights in the U.S. If [*189] the federal government refuses to implement IHRL into domestic law,
as has been and continues to be the case, then the only alternative is utilizing the states to bring human
rights home.
In fact, some liberal judges in the Ninth Circuit have caught on and have "used federalism precedents to partially invalidate federal laws against possession of
pornography and medical use of marijuana, and a leading conservative judge used these precedents to invalidate a federal gun control law." n317 These decisions illustrate the growing
trend of using federalism to protect civil rights and liberties. Scholars have advocated expanding the federalism doctrine into areas where support is stronger at the state level. n318
Perhaps, however, it need not be a sincerely held belief in the virtues of federalism, and could be more of an
opportunistic strategy whose ends justify the means.
For instance, some conservatives tout federalism only when they like the outcome. The
flurry of political steam surrounding the removal of Terry Schiavo's feeding tube is a perfect example. In March 2005, Congress passed a bill subsequently signed into law by
President Bush allowing federal courts to take over Shiavo's case from the Florida state courts. One of the few Republicans who voted against the bill admitted that his "party is
demonstrating that they are for states' rights unless they don't like what states are doing," n319 adding that "this couldn't be a more classic case of a state responsibility." n320
It is not difficult, however, for a liberal to develop a genuine respect for states' rights; doing so will decrease public perceptions of political maneuvering as was the case with the
Republicans in the Schiavo incident.
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Solve – International Human Rights Law
State courts are responsible for implementing US international treaty obligations and customary international law
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
The report then explained that the United States had, through its ratification process, put other governments worldwide on notice that the "United States will implement its
obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state, and that the federal government will remove any federal inhibition to the
abilities of the constituent states to meet their obligations in this regard." n21
In short, while the United States has generally taken a
passive role in encouraging states to implement human rights law, it has accepted the basic proposition that
states are responsible for implementing some aspects of the United States' international treaty obligations.
Under the Supremacy Clause, states may also have obligations to implement customary international law at
the state level. Customary international law arises from nations' "general and consistent practice" that is
"followed by them from a sense of legal obligation." n22 Thus, while nation-states do not specifically assent
to customary international law as they do with treaties, it is nevertheless binding on the United States and therefore on the several states - as the law of nations. n23
It is clear that, based on principles of federalism as well as practical realities, state courts will at times be
in a position to implement customary international law in the first instance.
Whether or not the federal Supremacy Clause
requires states to apply customary international law depends on whether such [*365] customary law constitutes state or federal common law. The ultimate hierarchical status of
customary international law is beyond the scope of this article, however, and remains an open question (at least in part). The issue has recently received considerable attention from
scholars. On the one hand, international law scholars such as Harold Hongju Koh and Gerald Neuman argue that because implementation of international law is primarily a federal
matter under the United States Constitution, customary international law is a type of federal common law and therefore supreme over the law of the several states. n24 On the
other hand, so-called "revisionist" scholars such as Curtis Bradley and Jack Goldsmith argue that because the federal system leaves implementation of certain aspects of international
law to the states, at least some areas of customary international law must be matters of common law to be construed and administered by state courts. n25
State courts adhere to international human rights laws to uphold rights
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
Despite the clear legal basis for international human rights law, federal courts have been reluctant to use it.
n151 Nonetheless, progressive United States courts have used international human rights law to provide
further support for their interpretation of domestic laws. n152 International human rights law has been
much more influential on a state level. n153 For instance, state courts have used international human rights
law to provide support for their decisions in areas regarding the right to privacy, n154 the right to be free
from discrimination, n155 the right to freedom of movement, n156 the right to basic education, n157 and the
right to be free from dehumanizing treatment in prisons. n158
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[*441] International human rights law equally has the capacity to allow a state court to find its state
constitution establishes a positive right to public assistance. The California Court of Appeals serves as an
example of a state court using international human rights law to interpret state welfare statutes. In Boehm
v. Superior Court, n159 the California Court of Appeals invalidated an action of a county seeking to reduce
general assistance benefits. n160 The court determined that the minimal levels of assistance provided in the
county did not meet the needs for basic food and shelter as required by California law and international
standards of human rights. n161 The court quoted the Universal Declaration of Human Rights to support its
position that the county had a positive duty to provide basic necessities to its citizens. n162 The court
stated that, "Indeed, it defies common sense and all notions of human dignity to exclude from minimum
subsistence allowances for clothing, transportation and medical care. Such allowances are essential and
necessary to "encourage [self-respect and] self-reliance'... in a "humane' manner consistent with modern
standards." n163
"As the United States ratifies human rights treaties and as customary international law develops, the
Supremacy Clause can be seen both as an invitation and as a command to state judges to insure that rights
regarded as fundamental by the international community are fully enjoyed in this nation."
n164 Almost all industrialized
countries, excluding the United States, are committed to providing minimum welfare guarantees to their citizens. n165 It is time for the United States to enter the 21[su'st']
Century and affirm its international obligation to aid the poor.
State courts can fulfill this international mandate to promote basic
standards of human decency by interpreting their state constitutions to establish a positive right to general
assistance and access to shelter. To do otherwise, would be blatantly disregarding [*442] international legal
obligations, and more importantly, the right of every person to be free from want.
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Solve International Human Rights
State courts are the best way to pursue human rights promotion – it’s a more promising avenue for social
change than federal courts
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
1. Substantive Importance of Policy Making in U.S. State Courts
State courts are often overlooked
despite the important role they play in the creation of substantive policies that affect American citizens on
an individual and local level.Because of this unique feature of state courts, human rights attorneys should
press state courts to use IHRL. Furthermore, state courts should accept these arguments because the norms
and jurisprudence found in IHRL provide a legal framework that can help judges interpret the positive rights
included in their own constitutions. In the U.S., the bulk of the judicial workload - over 99 percent - occurs
at the state rather than federal level, with 95 percent of U.S. judges working at the state level.n268
Moreover, it is not just the sheer size of the state judicial system that is significant; it is also the fact
"that the decisions of state jurists frequently have a great impact on public policy." n269 State courts
utilizing [*180] IHRL will also set the foundation for using human rights law in federal courts.
Because state court judges have less of a public audience, they might be more apt to apply IHRL than the
Supreme Court Justices. The rediscovery of state courts has been "encouraged by social reform groups that
began to look to state courts as a new arena in which to pursue their goals as the U.S. Supreme Court
became increasingly unsympathetic to their agenda."n270 According to Professor Anthony Tarr, litigants have
been instrumental in causing state
judges to explore their state constitutions in ways that they would not have done on their own initiative. n271 One Judge-Participant at the 1992 Forum for State Judges
remarked that:
On our court, we see our role as writing and interpreting for a different constituency from the United States Supreme Court. The Supreme Court writes for a very broad
constituency and deals with problems that have probably the lowest common denominator. We think that in our small state we can perhaps have a little more play in the joints,
give a smidgeon more freedom here and there, because we're not writing for the national scene. n272
In addition, because the freedoms found in state law often surpass those found in federal law, state
courts can expand upon them using IHRL as an interpretive aid in ways that the federal courts cannot. IHRL
litigation has found a new forum in state courts, where substantive state constitutional
[*181] rights are
litigated with increasing frequency using international norms as interpretive aids.
State government and courts are better at human right issues than at the federal level
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
1. Human Rights Abuses Occurring in the State are Treated as State Constitutional Violations
Many
state constitutions go beyond the floor of rights required by the federal Constitution. Moreover, some
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international human rights norms are broader than what the Constitution provides. n207In its first report
to the HRC regarding its compliance with the ICCPR, the U.S. declared that the federal government was
[*171] a government of limited authority and responsibility ... [and that] state and local governments
exercise significant responsibilities in many areas, including matters such as education, public health, business
organization, work conditions, marriage and divorce, the care of children and the exercise of the ordinary
police power... . Some areas covered by the [ICCPR] fall into this category. n208
State governments, in contrast to the federal government, can and do provide their citizens' basic needs in
ways that the federal government cannot. As a result, one can challenge a human rights violation in state
court, alleging a violation of a state, as opposed to federal, constitutional or statutory provision.
Furthermore, in contrast to the federal courts, "state courts have been more progressive in providing for
protection for basic needs" n209because state courts may supplement the federal constitutional minimum
standards "through interpretation of their own constitutional or statutory standards." n210 These
constitutions and statutes are exactly where IHRL can be utilized for their interpretive value.
State courts offer more permanent protection for social welfare rights – they have stronger grounding than
federal rights
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
Our federalist system created the capacity for each state to take care of its own citizens, never intending
the federal government to take over these obligations. The Constitution left "the 'police power' - the
protection of public health, safety, and morals - ... to the states, with the federal government entrusted
with less sensitive powers like those over interstate and foreign commerce." n301While the federal
government has in fact enacted many social welfare programs, it is under no legal obligation to do so, and is
"legally free to shift these responsibilities back to the states." n302The combination of the intent of the
federalist system which left social rights to be protected by the states, and the current uncertainty in the
continuance of federal welfare programs, explains why state constitutions often include social rights; thus,
litigating IHRL at the state level can result in substantial rewards.
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Solve - International Human Rights
State courts are best for implementing human rights issues
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.)
Although there is some truth to the notion that the United States (U.S.) Constitution provides more guarantees than does international law, there are areas where it is not as
protective. Consequently, instances of U.S. violations of international human rights law (IHRL) continue to arise. n1 For example, the Constitution only protects negative rights and
does not guarantee basic human needs. n2 Despite the fact that the U.S. Supreme [*140] Court (Supreme Court) has firmly held that the Constitution does not provide a right
to education, n3 adequate housing, n4 or welfare benefits, n5 these are basic tenants of IHRL.
n6Moreover, any federal legislation or funding
concerning social welfare (such as education or social security) is discretionary. Thus, the Government,
without violating anyone's Constitutional rights, may choose to cut funds or even abandon the program
entirely. n7 Yet, because state constitutions often have stronger positive and substantive rights to
interpret, it is in state courts that human rights litigation can be most effective.
By comparing U.S. federal court litigation with state court litigation aimed at enforcing IHRL, this paper
examines the role that state courts can and should play in the implementation of human rights in the
U.S. The
paper briefly comments on international institutions in Part II as a means to reinforce the reasons why, in the current atmosphere, domestic courts are the only alternative for
implementing IHRL in the U.S. Part III provides the background for IHRL and its applicability and enforcement in the U.S. legal system. State court use of IHRL is examined in Part
IV. Finally, Part V focuses on why state courts, as opposed to federal courts, may be the proper forum for the enforcement of human rights. They say that human [*141] rights
begin at home; this paper examines why human rights litigation should begin in state courts.
State courts can protect international human rights in social service cases
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
3. IHRL Can Inform Judges' Decisions in Interpreting State Law
A human rights lawyer may persuade a
state judge to look to IHRL as a tool in interpreting the state's constitution and statutes.
The litigant does not need
to argue that the human right law is binding on the court, but can use it as persuasive authority for the desired result. For example, although all fifty state constitutions provide a
right to education, n231 international treaties and the jurisprudence of human rights institutions may provide the court with a fuller meaning of the right.
n232Subject
matters often found in state laws that can benefit from the wider amplification supplied by international
norms include health and medical care, n233children,n234welfare and social security,n235discrimination
against women, n236homosexuals, n237minorities,n238the death penalty, n239civil and political rights,
n240and [*176] economic and social rights such as the right to adequate food.n241
Moreover, using IHRL as an interpretive
tool is practical even though it is not binding, because "if a court uses human rights law to reach a decision in your favor, it doesn't matter very much what the legal status of the
international norm is." n242 The following chart provides an example of how these rights can be used to help interpret affirmative rights embraced in various state constitutions.
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State courts have a critical role in implementing international human rights and can go beyond the federal
government in welfare, health, and family law
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
In a federal system, state courts have a critical role to play in implementing the international human rights
obligations of the national government. Indeed, in certain circumstances, state courts have an obligation to
take a leadership role in such implementation. State judicial implementation of the U.S.-ratified Vienna
Convention on Consular Affairs is one such example. Moreover, because the federal constitution serves merely
as a floor rather than a ceiling on human rights, state courts are often in a position to harmonize positive
rights in their own state constitutions with both their international and national obligations. Additionally,
states may have primary "on-the-ground" implementation responsibility in many areas traditionally reserved
to them, such as family law, and health and welfare, which are components of both CERD and ICCPR.
Because of these responsibilities, state courts should routinely look to international human rights law in
construing state constitutional provisions. In those instances in which the federal government has not
entered into any international obligations - and where, as a result, state courts have no implementation
obligation - international models may still be particularly important where the court cannot rely on any
federal analogues to the state constitutional provision before it. In such cases, international legal
developments in the area can provide important judicial guidance. Further, as was the case for interpretation
of New York's constitutional provisions for the public health, where scant domestic interpretation has
developed since passage of the provision, international legal developments can be invaluable aid to courts
required to fill in the gaps.
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AT: State Judges Lack Experience - Human Rights Issues
The counterplan fiats greater state court recognition of international human rights – this act alone serves to
educate judges
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
3. State Judges Lack a Sufficient Understanding of IHRL
Willful ignorance is not a valid criminal defense;
likewise, the willful ignorance of many judges (and Americans in general) n323is not a proper objection to
litigating IHRL in state courts. Unfortunately, this sort of ignorance has harmful consequences for those who
litigate human rights. For example, many non-citizen criminal defendants challenge the constitutionality of
their conviction due to the denial of their right to speak with their consulate, as provided for in the VCCR.
n324 In 1997, the Mexican government had one of its nationals on death row in Texas claiming that Texas
violated the VCCR. Alberto Gonzalez, who at that time was the legal counsel
[*191] to Governor Bush,
proved his ignorance of international (and constitutional) law by writing that "since the State of Texas is
not a signatory to the [VCCR], we believe it is inappropriate to ask Texas to determine whether a breach
... occurred in connection with the arrest and conviction." n325 Two days later, Texas executed the
defendant. That some state judges are passionate about human rights and will make reference to IHRL in
their decisions, speaks to the fact that not all state judges are uninformed of IHRL. Even if a judge is
unfamiliar with IHRL, a litigant must, as in all other cases, educate the court of areas of the law that are
in the best interest of the client.
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Can Rule on Customary International Law
State courts can rule on customary international law
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
4. State Courts May Use Customary International Law
Because a state court can utilize CIL, the
litigant need not worry if the U.S. has not signed a particular treaty, or if a non-self-executing clause has
been attached to a treaty the U.S. has ratified. A human rights lawyer may utilize CIL in three ways: (1)
by arguing that CIL provides, as dictated by The PaqueteHabana, n260an independent body of law that
binds U.S. courts; (2) by arguing that the CIL constitutes jus cogens; n261or (3) by asking the court to
use CIL as a tool to interpret U.S. law. n262
State constitutions protect rights better than the federal constitution- are guided by international law
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
Even where no binding transnational law is at issue, state courts can appropriately reference transnational
law. For example, some state laws have been crafted in the shadow of, and were thus influenced by,
international agreements such as the Universal Declaration of Human Rights. n52 As a result, many state
constitutions reject federal constitutional constructions in favor of transnational formulations of rights. n53
In some instances, the origins of the language and the genesis of concerns expressed are the same. n54 But
even when such direct connections are not apparent, the similarities between international law provisions and
state constitutional provisions granting affirmative rights support [*372]
using transnational human rights
norms to interpret state law.
Many state constitutions articulate rights that are not mentioned in the federal constitution, such as positive
rights to welfare, health, education, and the right to work. Positive rights to welfare - wholly lacking at the
federal level - are "among the most common positive rights in state constitutions." n55 One of the most
specific of these provisions, article XVII of the New York State Constitution, states that "the aid, care and
support of the needy are public concerns and shall be provided by the state ... in such manner and by such
means" as the legislature shall determine.
n56 Explicit rights to education, also absent from the federal constitution, are also found in many state
constitutions. For example, the Constitution of North Dakota states that "the legislative assembly shall provide for a uniform system of free public schools throughout the state."
n57
Though health is less often directly addressed in discrete provisions of state constitutions, there are a
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number of pertinent state constitutional sections.
For example, Alaska's constitution, adopted at the time of statehood in 1959, provides for the
public health of state inhabitants. n58 Hawaii's constitution also states that "the State shall provide for the protection and promotion of the public health." n59 Finally, many
state constitutions also address the affirmative right to work and the right to organize as members of trade unions. For example, the New York State Constitution states
"employees shall have the right to organize and to bargain collectively through representatives of their own choosing." n60 Several state constitutions also specifically address working
[*373] hours n61 and working conditions. n62
These state constitutional provisions and the laws that implement them are direct analogues to international law approaches that encourage or mandate affirmative attention to
areas of economic and social well-being. n63 Like the state constitutional provisions set out above, the International Covenant on Economic, Social and Cultural Rights (ICESCR)
addresses education, stating that "the States Parties to the present Covenant recognize the right of everyone to education." n64 The ICESCR also specifies the requisite steps for
ensuring the public health, including reduction of infant mortality, improvement of industrial hygiene, prevention of disease, and provision of medical services. n65 Labor rights are
directly addressed in article 22 of the ICCPR, which states "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for
the protection of his interests." n66 The ICESCR addresses work conditions in greater detail than the ICCPR, mandating that States Parties provide "fair wages," "[a] decent living,"
"safe and healthy working conditions," "equal opportunities for everyone to be promoted," and "rest, leisure and reasonable limitation of working hours." n67
There are often dramatic similarities between the language and content of state constitutions and
international human rights instruments.
For example, in the area of welfare, the ICESCR provides that States Parties "recognize the right of everyone to
social security, including social insurance," and "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and
to the continuous improvement of living conditions." n68 Hawaii's constitution tracks these sentiments, providing for financial assistance, medical assistance, and social services for
persons in [*374] need, as well as economic security for the elderly. n69 It also grants the state power to provide housing, slum clearance, and development and rehabilitation of
substandard areas. n70 Kentucky's constitution, amended in 1985, also specifically addresses social insurance, directing the general assembly to "prescribe such laws as may be
necessary for the granting and paying of old persons an annuity or pension." n71 Barbara Stark has written extensively on the similarities between the ideas in the ICESCR and those
expressed in state constitutions. n72 These provisions' meanings on the international stage cannot easily be differentiated from the meaning of similar provisions in state
constitutions. It is therefore appropriate for state courts to look to transnational law for guidance when construing state constitutions.
In contrast to the debate at the federal level, discussed below, state courts have not typically viewed the relevance of transnational law to domestic policy as controversial.
As
one among fifty, each state is accustomed to looking to sister states for jurisprudential and policy ideas. n73
Their comparative perspective is matched on the international plane: high courts of other nations have also
long credited transnational law as persuasive authority.
For example, members of South Africa's Constitutional Court addressing the
constitutionality of the death penalty have examined decisions from other states (Botswana, Canada, Germany, Hong Kong, Hungary, India, Jamaica, Tanzania, the United States,
and Zimbabwe) and transnational bodies (the European Court of Human Rights and the United Nations Committee on Human Rights). n74 The Israeli, Canadian, and Indian Supreme
Courts also have traditions of looking for wisdom from sister jurisdictions in other nations. n75 Not surprisingly, therefore, as Reem Bahdi has pointed out,
state courts invoke international law for similar
promote universal values;
American
reasons as their sister courts in other nations: "(1) concern for the rule of law; (2)
desire to
(3) reliance on international law to help uncover values inherent within the domestic regime; (4) willingness to invoke [*375] the logic
of judges in other jurisdictions; and (5) concern to avoid negative assessments from the international community." n76
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Can Rule on Customary International Law
State courts rely on international laws to interpret state laws in areas where federal involvement is limited
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
The formal legal status of international customary law may become an issue of practical concern in areas
outside of the ATS context if state courts begin to view themselves as obligated to implement transnational
law, as I argue they should. At this point, however, the first principle - that state courts have a [*366]
responsibility to implement the United States' international legal obligations - has not yet been fully
accepted or reflected in state court jurisprudence.
Regardless of how the customary international law/common law debate is resolved, states may still lead the
way in implementing customary international law. For example, as I describe below, state courts may rely on
customary international-law principles, as well as on international human rights principles from treaties that
have not attained the status of customary international law, to interpret state law, regardless of the
extent to which such norms are binding. n29 Julian Ku notes that states have been engaged in such
activities for decades, particularly in areas such as trusts and estates and family law where federal
involvement is limited. n30 Given courts' ability to sidestep the debate entirely by simply looking to
international customary law for inspiration instead of binding authority or by using it to construe state
constitutions with little federal oversight, the customary international law/common law debate is, as Mark
Tushnet has suggested, a classic "tempest in a teapot," with little practical impact. n31
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AT: B’lash Against State Court Interpretations of IL
State court adherence to international law is not controversial
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
While federal judicial citation of transnational authority has sparked considerable debate in recent years, n6
state court consideration of transnational sources should be much less controversial. First, the relatively
populist structure of state governmental institutions, including state courts, undermines concerns that one
branch might foist improper "foreign" views on the others unchecked. Second, institutional infighting between
the federal branches - for example, over what constitutes an exercise of the foreign affairs power - has no
parallel at the state level.
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AT: Supreme Court will Strike Down State Courts
State court decisions will only be struck down if they explicitly interfere with the foreign affairs power
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
But one cautionary tale comes from Massachusetts. In 1996, a few months before federal sanctions were
imposed against Burma for their human rights abuses, the Massachusetts legislature adopted the
Massachusetts Burma Law which restricted the ability of Massachusetts agencies to do business with Burma.
Because of the Congressional action, though, the Supreme Court, in Crosby v. National Foreign Trade Council,
declared the state law unconstitutional under the Supremacy Clause, "owing to its threat of frustrating
statutory objectives." n283However, many other states and cities have passed similar "selective purchasing
laws" and so long as they do not encroach on the federal foreign affairs powers, they will be upheld as
constitutional. n284
The Supreme Court can’t review state court decisions that are based in state constitutions
Gabrielidis 06 - Assistant Public Defender, Las Cruces, New Mexico; LL.M., Center for Civil and Human
Rights, Notre Dame Law School 2006 (Anna Maria Gabrielidis, Buffalo Human Rights Law Review “HUMAN
RIGHTS BEGIN AT HOME: A POLICY ANALYSIS OF LITIGATING INTERNATIONAL HUMAN RIGHTS IN U.S.
STATE COURT” Lexis.) Note: IHRL = International Human Rights Law
4. Immunity from Supreme Court Review
The Supreme Court cannot review a state court decision that
was decided on independent and adequate state grounds. The decision must have been "independent from
federal grounds and adequate to support the state court decision,"n285 but a federal court may review a
case if "the state has failed to protect rights granted by the federal constitution." n286 Moreover, if a
Supreme Court reversal of the federal law basis of the decision will not change the result in the case, the
Supreme Court cannot hear the case. n287 Therefore, a state decision that used international human rights
law to guide its interpretation of the state constitution will be immune from Supreme Court review,
signifying
State courts citing international laws have not been struck down
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
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In contrast to legislative actions at the federal or state levels, judicial opinions that cite transnational law
have not typically been viewed as transgressing the primacy of the national executive branch in foreign
affairs. Perhaps this is because those domestic courts and judges that have ventured into the international
law arena have generally done so in areas involving individual rights that are far from the central concerns of
foreign relations, and therefore less likely to overtly interfere with the prerogatives of the political branches.
n90 [*378] Such decisions stretch back to the beginning of the nation, both in federal and state courts.
n91 As a result, barring judges from examining transnational sources for inspiration, guidance, or even legal
authority would mean a departure from longstanding practice, not a return to originalism. Furthermore, any
concerns that may be raised by federal court citation of transnational authority are diminished on the state
level since the possibility that a single state court's pronouncement would be mistaken for national policy is
remote.
In addition, any concern that a state court's citation of transnational law would impinge on the state's own
executive branch of government is mitigated by several factors. First, certainly no branch of state
government has principal constitutional or institutional responsibility for foreign relations. Second, because
most state constitutions do not draw strict lines between state governmental branches, a state court citing
transnational law does not impinge on the core responsibilities of the other branches. n92 Finally, the ease
with which state constitutions may be revised, and the role of popular participation in their amendment,
enables the political process to limit any perceived misuse of judicial power. n93
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AT: Federal Rationality Review Blocks State Courts
Federal rationality review doesn’t apply to state courts
Doughten, 3- J.D., magna cum laude Gonzaga University School of Law, 2002 (Robert Doughten, Gonzaga
Law Review, “Filling Everyone’s Bowl: A Call to Affirm a Positive Right to Minimum Welfare Guarantees and
Shelter in State Constitutions to Satisfy International Standards of Human Decency,” 2003/2004, LexisNexis Academic)
"Consistent with the states-as-laboratories metaphor, the constitutions of the fifty states present a very
different framework in which to analyze whether government may stand by and ignore the hunger and
homelessness of its citizens." n108 Yet, most state courts apply federal rationality review to positive right
claims, failing to recognize the state's constitutional duty to provide for the general welfare of its citizens.
n109
Federal rationality review does not acknowledge the difference between enforcing positive right claims on the
state level and the federal level. n110 Federal rationality review is suitably described as "the deferential mode
of scrutiny the Court applies to garden-variety socioeconomic legislation" and is effectively no review at all.
n111 Typically, a court applying rationality review will not even review the logic of the legislature or the
outcome of its actions. n112
[*436] Federal rationality review rests its foundation on doubts concerning federalism and separation of
powers. n113 These concerns are not justified on a state level, n114 where the counter-majoritarian concerns
are not as strong. State court judges are, generally, elected. n115 Granted, "running for office does not
transform black-robed judges into representative decision makers." n116 However, it does lessen the countermajoritarian concerns which are the basis for federal rationality review. n117 Furthermore, it allows increased
legitimacy for an elected court's ability to weigh voter preferences against constitutional standards. n118
Finally, it is important to note that unlike the Federal Constitution, state constitutions contain explicit
welfare provisions demanding that its legislature provide for the general welfare of their citizens. n119
The differences between state and federal positive right claims should allow a state court on a state
constitutional welfare challenge to subject the legislation to rigorous scrutiny to determine whether the
statute is likely to achieve its goals. n120 A positive constitutional right demands that a state legislature
"realize and advance the objects and purposes for which ... powers have been granted." n121 Rational basis
[*437] review completely ignores determining whether the legislature has satisfied their constitutionally
mandated duties under the state constitution. n122 Positive rights not only determine what a government
can do, but demand the government to achieve certain goals. n123 As a result, state courts must review
whether the legislature is moving toward satisfying their obligations under state constitutional welfare
provisions. This calls for a greater level of judicial scrutiny than mere federal rationality review.
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State Courts Don’t Solve
State courts can’t solve- provisions in state constitutions are sporadic and vague
Rava, 98- First place winner in the 1998 Student Writing Competition on State Constitutional Law,
sponsored by Temple Law Review and the National Association of Attorneys General. A.B., 1991, Harvard
University; J.D., 1998, Northwestern University School of Law. Law Clerk to the Honorable Richard D.
Cudahy, United States Court of Appeals for the Seventh Circuit.
(William C. Rava, Temple Law Review, “State Constitutional Protections for the Poor,” Fall 1998, LexisNexis Academic)
Over the last two decades, the federal government has steadily retreated from its once dominant role in
administering social welfare programs. The PRWORA's devolution of many of the New Deal's central programs
to the individual state governments marks another significant step in this retrenchment. Advocates for the
poor expressed concerns over granting the states such wide discretion in welfare policy. Amidst these worries,
some scholars voiced hopes that state constitutions and state courts could (and would) take over the federal
role as protectors of the nation's poor. n208 Many state constitutions do, in fact, contain express welfare
clauses, an important textual difference between these documents and the Federal Constitution. These
provisions, however, are not strong guarantees for two reasons.
First, most state constitutions do not contain such welfare provisions. This Article undertook a
comprehensive and expansive textual search and identified only twenty-three states whose constitutions
include a welfare clause (as defined for purposes of this Article). The vast majority of these clauses do not
require any state actor to take any specific action. n209 Indeed, only four state constitutions impose, on
their face, an affirmative obligation on the state to care for the needy, and three of these clauses also
include express qualifying language. n210 The remaining nineteen provisions contain even less obligatory
language, using explicitly permissive verbs or merely implying that the state care for its indigent.
Furthermore, all of the clauses are replete with vague and ambiguous wording. Many of the terms - the
command verbs and their objects - are not easily defined or, alternatively, too easily defined. n211 In any
event, what must or can be done and for whom it should be done is often if not always unclear from the
explicit language of the welfare clauses. Like the Federal Constitution, then, the texts of the state
constitutions do not necessarily compel state action to aid the needy.
Second, state courts' interpretations of these clauses are unsophisticated.
Explications of even those constitutional provisions that
impose on the states an affirmative duty to care for the needy largely rely on federal standards, [*568] specifically a rational basis, equal protection analysis. n212 This
convergence of state and federal law is a familiar problem with state constitutional jurisprudence. n213 Instead of developing independent analytical tools based on the state
constitutions themselves, state courts often simply adopt federal handles. With regards to state constitutional welfare sections, the state courts do not engage, for the most part,
in detailed discussion of language or structure. They rarely inquire into the history of the particular provision, or search for an original understanding, or employ any of the numerous
other traditional methods of getting at meaning. In short, the courts do not engage in constitutional interpretation of the text itself.
From a policy perspective, this lack of jurisprudential sophistication is troubling because it signals a
retrenchment paralleling the federal withdrawal from welfare policy policing. Like the federal courts, the
state courts have shown a willingness to leave constitutional definition to the legislative and executive
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branches in an area of law (and policy) where definition is of particular importance. It means, after all, the
difference between eating and starving, between sleeping indoors or on the street. Definitions have real
consequences. The state courts, even when faced with a constitutionally-imposed state duty, refuse to
engage in definitional line-drawing. Although constitutional vagueness does not of itself demand a more active
judicial role, textual shortcomings also do not necessitate judicial abdication.
To be sure, perhaps only a handful of the welfare provisions identified here might provide sufficient support
alone to mount a challenge to a state welfare regulation. n214 These clauses are plagued by vague texts as
well as weak interpretive foundations. The very presence of these welfare clauses, however, should embolden
the welfare litigant.
Text does matter. It may not, as here, always win the day, but, unlike the federal courts, many state courts can take action in the welfare
arena guided by a textually-based constitutional ideal (rather than, for example, individual notions of social justice). Advocates for the poor should demand such careful and principled
decision-making. They should push for a more mature constitutional dialogue, one rooted in the text, structure, and history of the state constitutional welfare provisions. They
should insist on the primacy of state constitutional interpretation of these welfare clauses.
State constitutions are frequently amended
Davis, 6- Associate Professor, Northeastern University School of Law
(Martha F. Davis, New York University Review of Law & Social Change, “Realizing Domestic Social Justice
Through International Human Rights: Part I: The Spirit of our Times: State Constitutions and International
Human Rights,” Lexis-Nexis Academic)
State constitutions are amended frequently and often with popular participation. For example, the Iowa
Constitution has been amended an average of once every three years since its adoption. n94 Alabama's
constitution has been amended at least 618 times since 1819, and California's has been amended at least
493 times. n95 By 1995, the nation had seen 230 state constitutional conventions, in which 146
constitutions and some 6000 amendments were [*379] adopted. n96 Even when they are generated by
the legislature or a constitutional convention, state constitutions and constitutional amendments are often
ultimately passed by popular referendum. n97 For example, the New York State Constitution provides that
a constitutional convention must be considered by the "electors of the state" every twenty years. n98 Any
amendments proposed by the convention must then be approved by a majority of voters. n99
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