#federalism

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2025/07/03/states-rights-trumps-wrongs/#mamdani

As fascism burns across America, it's important to remember that Trump and his policies are not popular. Sure, the racism and cruelty excites a minority of (very broken) people, but every component of the Trump agenda is extremely unpopular with the American people, from tax cuts for billionaires to kidnapping our neighbors and shipping them to concentration camps.

Keeping this fact in mind is essential if we are to nurture hope's embers, and fan them into the flames of change. Trumpism is a coalition of people who hate each other, who agree on almost nothing, whose fracture lines are one deft tap away from shattering:

https://pluralistic.net/2024/07/14/fracture-lines/#disassembly-manual

The vast unpopularity of Trumpism presents endless opportunities for breaking off parts of his coalition. Take noncompete "agreements": contractual clauses that ban workers from taking a job with any of their employers' competitors for years. One in 18 Americans has been captured by a noncompete, and the median noncompete victim is a minimum-wage fast-food worker whose small business tyrant boss wants to be sure that she doesn't quit working the register at Wendy's and start making $0.25/hour more flipping burgers at McDonald's.

The story of noncompetes is bullshit from top to bottom. The argument goes, "Your boss invests heavily in training you, and lets you in on all his valuable trade-secrets. When you walk out the door and go to work for a competitor, you're stealing all that training and knowledge. Without noncompetes, no boss will invest in the knowledge-intensive industries that are the future of our economy."

Now, like I said, the vast majority of people under noncompetes are working low-waged, menial jobs with little to no training, and no proprietary trade secrets to speak of. Which makes sense: workers with less bargaining power end up signing worse contracts. That's half the case against noncompetes.

Here's the other half: the most IP-intensive, profitable, knowledge-based industries in America operate without any noncompetes. California's state constitution bans noncompetes, which means that every worker in Hollywood and Silicon Valley is free to quit their job and walk across the street and join a rival.

Kathrina Szymborski Wolfkot at The UnPopulist:

As the U.S. Supreme Court rolls back long-standing constitutional protections, advocates are increasingly looking to state courts and constitutions to protect civil rights and liberties. The shift toward state constitutions as sources of expanded rights crosses ideological lines and issues, from abortion to criminal sentencing to property rights. It reflects a basic, often overlooked, truth about our system of government: States can provide more expansive protections for individual rights and liberties than the federal Constitution. Bringing a state constitutional claim, then, is like taking “second shot” when “you can’t win under the federal Constitution,” as federal Judge Jeffrey Sutton put it in November at a symposium organized by the Brennan Center for Justice and the Northwestern Law Review.

What’s more, state court decisions that rest on an “adequate and independent state ground”—rulings that are not dependent on federal law interpretation—are generally insulated from U.S. Supreme Court review. In other words, when state courts interpret and apply federal law, their decisions can be appealed to federal court. But “[a] state court’s view on issues of state law is, of course, binding on the federal courts,” Justice Sandra Day O’Connor wrote in 1984. That includes interpretations of state constitutions that offer broader rights than those available under the federal counterpart. As a result of this constitutional federalism, state courts, drawing on their respective state constitutions, are increasingly emerging as an avenue for advocates who care about securing protections for individual rights and democracy, independent of anything the Supreme Court might do.

[...]

A Movement Supercharged

At around the same time as the Jones decision, the Brennan Center launched State Court Report, a non-partisan publication focused on news and commentary about state courts and constitutions. The Brennan Center has also filed friend-of-the-court briefs encouraging state constitutional interpretations independent of federal case law; brought together judges, scholars, and practitioners at symposia to discuss the role and importance of state constitutions; and conducted research about spending in judicial elections, legislative assaults on state courts, and diversity on state judiciaries. Organizations like the American Civil Liberties Union and the Institute for Justice have shifted focus to state supreme courts, and new organizations have popped up to focus exclusively on state courts and constitutions.

The emerging movement around state courts and constitutions gained speed after the U.S. Supreme Court in 2022’s Dobbs v. Jackson Women’s Health Organization declared there was no federal constitutional right to abortion, overturning decades of precedent. The decision also raised questions about the future of other rights rooted in substantive due process, such as contraception and same-sex marriage.

Dobbs triggered an explosion of state constitutional litigation around reproductive rights. To date, 12 state supreme courts have recognized at least some constitutional protections for abortion. At the same time, supreme courts in five states have held there is no right to an abortion in their constitutions. Some courts have raised the specter of “fetal personhood”—a doctrine that would not just allow but likely require prohibition of abortion, further curtailing reproductive freedom in the name of fetal protections. This demonstrates that robust state constitutional protections don’t necessarily favor those on any particular side of an issue.

State constitutional litigation over abortion restrictions is ongoing in another dozen or so states. Additionally, as of 2024, citizens of 10 states have voted to add amendments to their state constitutions protecting abortion, including in Arizona, California, Maryland, Michigan, Missouri, Montana, Colorado, Nevada, New York, Ohio, and Vermont.

State constitutional abortion litigation invokes a range of diverse constitutional rights and provisions, including privacy, bodily integrity, equality, healthcare freedom, and even religious liberties. This array of theories underscores the creativity of advocates and the breadth of constitutional protections across the states. It has also exposed the dangers of lowering the federal floor: The country is now a patchwork of rights, with freedoms depending on geography and conflicts erupting about which states’ laws should apply to inter-state disputes related to abortion care.

Voting Rights, Ballot Measures, and Gerrymandering

Given the midterm elections this year, a substantial portion of upcoming state constitutional litigation is likely to center on democracy-related provisions. Almost every state constitution explicitly protects the right to vote. State courts are frequently called upon to apply these provisions to determine the constitutionality of laws governing when and how people cast ballots—especially in the run-up to an election. About half the states allow for some form of direct democracy, or citizen-initiated referenda on proposed constitutional amendments and statutes. State courts play a significant role in determining whether proposed amendments will appear on a ballot, adjudicating disputes like whether signatures were properly collected or initiative language is misleading. In January, for example, the Montana Supreme Court rejected a proposed initiative for the 2026 ballot that would have added to the state constitution a provision combatting corporate political spending.

[...]

Unique Rights

Much significant state constitutional development has centered on state clauses explicitly protecting rights not found in the federal Constitution. For example, every state constitution requires the creation and maintenance of public education. While fights over what entails an adequate public education have raged for decades, battles over whether the requirement that states provide a “common” or “free” education precludes the use of public funds to non-public schools are a new frontier. School choice advocates have won in some states, like West Virginia, but lost in others, like South Carolina.

MSNBC's Ali Velshi talks with constitutional lawyer Kermit Roosevelt III.

A good portion of the discussion was on the 10th Amendment to the US Constitution. That amendment gives to the states or the people the powers not specifically delegated to the federal government. It's rather uncomplicated, just 161 characters.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While it might be lost in Trump's other unconstitutional actions and hissy fits, the assault on the 10th Amendment has been getting additional scrutiny in New York.

Over the past several months, a small coterie of wonks and lawyers—and a few farsighted Democratic governors—have been working in anticipation of this moment. They have prepared measures to insulate states from the Trump administration’s most aggressive impositions. They have constructed plans to preserve abortion protections within blue-state borders and to protect environmental regulations enshrined in their books; they have formulated legal strategies for at least slowing Trump’s intended mass deportations.

BREAKING: Judge Perry Slams Trump’s Militia Fantasy — Uses Founders’ Own Words to Trash His Claims So here’s the storyline: Judge April Perry just dropped a ruling so fierce it ought to come with its own sound effects. She took Trump’s “send the guard to Chicago” gambit, strapped it to the stake, and lit the match — using the words of Hamilton, Madison, and our constitutional traditions as fuel.…