The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state constitutions unambiguously confer positive constitutional rights. Thus, while DeShaney and Castle Rock either harshly excluded or prudently liberated, depending upon one’s view, federal courts from the work of interpreting positive constitutional rights, their state court brethren have neither been so limited nor relieved. Instead, state courts must confront the challenge posed by positive rights. In addressing such rights, the interpretive approaches adopted by state courts have reflected a rich diversity. State courts have also struggled mightily with the task. This article focuses upon a species of state constitutional rights to which there are no federal counterparts, positive constitutional rights, and the interpretation thereof by state courts. The article first defines what constitutes a positive constitutional right and then highlights examples in state constitutions. The article next addresses differences between interpreting state constitutions and the federal constitution and between interpreting positive and negative rights in state constitutions themselves. The article then describes the various approaches state courts have taken to interpreting affirmative constitutional rights. Ultimately, the argument is advanced that there are five primary types of affirmative rights provisions in state constitutions each of which requires a distinct interpretive approach.
73 ALB. L. REV. 1459 (2010)