State Constitutions Are Where Rights Are Being Won Now

Pennsylvania's constitution contains a sentence older than the United States Constitution itself. In its earliest form, adopted in 1776, it promised that elections should be free. The modern version, in Article I, Section 5, is just as short: "Elections shall be free and equal." For most of two centuries, few people thought about it. Then, on January 22, 2018, the Pennsylvania Supreme Court used those five words to strike down the congressional map the state's legislature had drawn in 2011, a map that had reliably produced a lopsided delegation in a closely divided state. Federal courts were still arguing about whether partisan gerrymandering could be challenged at all. A state court, reading a state charter, had simply said that a map designed to dilute some citizens' votes was not free and equal. A new map was in place within weeks, in time for that year's elections.

In short: As the U.S. Supreme Court has narrowed federal protections for voting, abortion and other rights, state constitutions have become a powerful source of protection, often broader than the federal charter. Pennsylvania's 2018 gerrymandering ruling is one example among many. Here is the argument for treating state courts, state constitutions and state ballot measures as central to progressive strategy.

A ruling from a clause most people never read

The case, League of Women Voters of Pennsylvania v. Commonwealth, was brought by voters across the state who argued that the 2011 map split communities and packed and cracked Democratic voters to lock in Republican seats. The state supreme court agreed that the map "clearly, plainly and palpably" violated the Free and Equal Elections Clause. It gave the legislature and the governor a chance to agree on a new map. When they could not, the court adopted one of its own in February 2018.

Legislative leaders asked the U.S. Supreme Court to intervene. It declined. The reason is important: the Pennsylvania court had decided the case entirely under the Pennsylvania Constitution, and the U.S. Supreme Court does not review state courts' interpretations of their own state's law. That principle, sometimes called the "adequate and independent state grounds" doctrine, means that when a state supreme court rests a decision on its own constitution, it has the last word.

The following year, in Rucho v. Common Cause, the U.S. Supreme Court held that federal courts cannot decide claims of partisan gerrymandering at all, calling them political questions beyond the judiciary's reach. Chief Justice John Roberts's majority opinion noted that the ruling did not leave the problem without a remedy, and pointed to state constitutions and state courts as places where such claims could still be heard. Progressives and reformers took him at his word.

The idea is old, and it was argued by a liberal and a conservative

The modern case for state constitutions has a famous origin. In 1977, Justice William Brennan published an article in the Harvard Law Review urging state courts to interpret their own constitutions independently, especially as the Supreme Court under Chief Justice Warren Burger was pulling back from the expansions of the Warren years. State constitutions, Brennan argued, could protect rights beyond the federal floor.

Brennan was a liberal. But one of the most thorough recent arguments for the same idea came from Jeffrey Sutton, a federal appeals judge appointed by George W. Bush and widely regarded as a conservative. In his 2018 book, 51 Imperfect Solutions, Sutton argued that lawyers and judges had neglected state constitutions for too long, that state courts are often better positioned to experiment with rights, and that relying entirely on federal courts produces one-size-fits-all answers to questions on which reasonable people disagree.

That shared ground is worth emphasizing. The case for state constitutionalism is not a progressive trick. It is a structural argument about federalism that conservatives have made too, and it applies regardless of which party controls Washington.

Why state constitutions can do more

State constitutions differ from the federal one in ways that matter. Many are long and specific, and they protect rights the federal text never mentions. Some include explicit privacy rights. Many guarantee a free public education, which the U.S. Constitution does not. Several protect a right to a clean and healthful environment. Many have their own equal protection clauses, sometimes worded more broadly than the Fourteenth Amendment. And many contain free-and-equal elections clauses like Pennsylvania's.

State constitutions are also easier to change. Many states allow citizens to propose constitutional amendments by petition and vote on them directly. That gives voters a tool they do not have at the federal level, where amending the Constitution requires supermajorities in Congress and the states.

State courts are also more directly accountable in many states. Most states elect at least some of their supreme court justices or hold retention elections. That cuts both ways, and money in judicial elections is a real concern. But it means voters can influence the courts that interpret their rights.

Rights won at the state level

The record of state constitutional wins in recent decades is long. A few examples show the range.

On marriage equality, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health in 2003 that the state's constitution required the state to allow same-sex couples to marry, more than a decade before the U.S. Supreme Court reached the same conclusion nationally. Iowa's supreme court followed in 2009 with a unanimous ruling.

On school funding, state courts in New Jersey, Kentucky and elsewhere have held that their constitutions require adequate and equitable funding for public schools, forcing changes that federal courts declined to order after the U.S. Supreme Court held in 1973 that education is not a fundamental right under the federal Constitution.

On abortion, after the U.S. Supreme Court overruled Roe v. Wade in Dobbs in June 2022, voters turned to their state constitutions. In August 2022, Kansas voters rejected by a wide margin an amendment that would have removed abortion protections from the state constitution. Michigan voters added reproductive rights to their constitution that November, and Ohio voters did the same in November 2023. Several more states passed abortion-rights amendments in 2024.

On climate, in Held v. State of Montana, young Montanans argued that the state's energy policy violated their right to a clean and healthful environment under the Montana Constitution. A trial court agreed in 2023, and the Montana Supreme Court affirmed in December 2024. The case became a landmark for climate litigation built on a state constitution's environmental clause.

Green amendments and the right to a livable environment

Environmental rights deserve their own section, because this is where state constitutions differ most sharply from the federal one. The U.S. Constitution says nothing about clean air or water. Several state constitutions say a great deal.

Pennsylvania added an Environmental Rights Amendment to its constitution in 1971. It declares that the people have a right to clean air, pure water and the preservation of the natural, scenic, historic and aesthetic values of the environment, and it makes the state a trustee of public natural resources for present and future generations. For decades, courts treated it as more aspiration than law. That changed in 2013, when the Pennsylvania Supreme Court, in Robinson Township v. Commonwealth, struck down parts of a state law that had stripped local governments of power to regulate where fracking could happen. A plurality of the court relied on the amendment, treating it as a real limit on what the legislature could do.

Montana's constitution, adopted in 1972, guarantees a right to a clean and healthful environment and directs the state to maintain and improve it for present and future generations. That language is what made the youth climate case there possible. In 2021, New York voters added a similar right to their state constitution's bill of rights by ballot measure. Activists in other states have campaigned for comparable "green amendments."

The argument for these amendments is that they give residents, especially in communities near heavy industry, a legal claim that does not depend on proving a narrow, individual injury under federal standing rules. The argument against is that broad environmental rights invite courts to second-guess complex policy decisions about energy and land use. Both points have force. But voters in several states have weighed them and chosen to put the right in writing.

How to read your own state's charter

Most people have never read their state constitution, and most could do it in an evening. A few things to look for:

1. The declaration or bill of rights, usually Article I. Compare its language on speech, religion, privacy, equality and criminal procedure with the federal Bill of Rights. Differences in wording can matter.
2. Any elections clause, such as a promise that elections be free, equal or open.
3. Clauses on education, the environment, health or labor that have no federal counterpart.
4. The amendment article, which explains whether citizens can propose amendments by petition and what vote is needed to pass them.
5. The judiciary article, which explains how your state's supreme court justices are chosen and how long they serve.

The honest risks

Progressives should not romanticize state courts. They can take rights away as easily as they grant them, and they have.

The clearest example came in North Carolina. In 2022, the state supreme court struck down partisan gerrymanders under the state constitution. After elections changed the court's partisan majority, the court reheard the issue and, in April 2023, reversed itself, holding that partisan gerrymandering claims were not for state courts to decide. The legislature then drew new maps. The same constitution, read by different justices, produced opposite results within a year.

Similarly, the Iowa Supreme Court, which had recognized a state constitutional right to abortion in 2018, reversed itself in 2022. South Carolina's supreme court struck down a six-week abortion ban under the state's privacy clause in early 2023, then upheld a revised version later that year after the court's composition changed.

Those reversals show that state constitutions are only as protective as the judges who interpret them, which is why state judicial elections and appointments matter far more than most voters realize. In April 2023, Wisconsin voters elected Janet Protasiewicz to the state supreme court in what became one of the most expensive judicial races in American history. The new majority later struck down the state's legislative maps. Another closely watched Wisconsin race followed in April 2025.

There is a fair objection here too. Critics argue that elected judges deciding contested questions under vague constitutional language are doing politics by another name, and that rulings which swing with each election undermine the rule of law. That concern is legitimate. The answer is not to stop making state constitutional arguments, but to make them on solid textual and historical ground, and to recognize that conservatives use state courts as well.

The challenge from the independent state legislature theory

For a time, a legal theory threatened to cut state courts out of election law altogether. The independent state legislature theory held that because the U.S. Constitution gives state "Legislatures" power over federal elections, state courts could not apply state constitutions to limit what legislatures do in that area. If adopted, it would have stripped state courts of power to strike gerrymandered congressional maps under state law.

In Moore v. Harper in June 2023, the U.S. Supreme Court rejected the strongest version of the theory by a 6-3 vote. Chief Justice Roberts wrote that the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review, though federal courts may step in if a state court goes beyond the bounds of ordinary judicial review. The ruling preserved the state constitutional route for election law, with a limit whose edges are still being tested.

Here is the argument

I think progressives who care about rights should spend far more of their attention on state constitutions than they do. The reason is not that federal courts do not matter; they matter enormously. It is that the state level offers tools that the federal level does not: amendments that voters can pass directly, courts whose members voters can choose, and texts that often protect more than the federal charter.

This also connects to a broader point about federalism. For decades, progressives tended to see "states' rights" as a slogan used against civil rights, and for good reason. But federalism is a structure, not an ideology. When Washington is hostile, states can protect their residents. Blue states have used that power in 2025 and 2026 to resist federal actions they consider unlawful. State constitutions are part of the same toolkit.

What you can do

1. Learn your state's election rules. The voting guide covers registration deadlines, voter ID, and mail and early voting for every state, linked to each state's election office. State supreme court races are on many ballots; find out when yours is.
2. Contact your state legislators. Enter your address on the representatives page to find your state legislators as well as your members of Congress, with their phone numbers, contact forms and latest votes. Ask where they stand on redistricting reform and constitutional amendments.
3. Follow the redistricting fights. The redistricting coverage tracks the map battles in courts and legislatures across the country.
4. Watch what states are doing. The blue states coverage follows how states are using their own laws and courts.
5. Find groups working on your state's constitution. The organizations directory lists nonprofits by cause in every state, including voting rights, civil rights and legal aid groups.