In contemporary rights jurisprudence and theory, the Fourteenth Amendment and
the Federal Bill of Rights are most frequently conceptualized as bulwarks against
majoritarian abuses. From Brown v. Board of Education to Obergefell v.
Hodges and even District of Columbia v. Heller, federal rights are primarily understood as enforceable legal constraints on popular majorities (especially intrastate
majorities). Viewed through this lens, state constitutional rights are often dismissed
as fundamentally dysfunctional because they are too easily amended through
majoritarian political processes to constrain popular majorities. After all, what good
is a state constitutional right to marriage equality, for example, if it can be quickly
eliminated by a majority vote?
Volume 170Issue 4 2022 Article