Unlike the federal Constitution, which is primarily concerned with restrictions on government, the constitutions of individual states contain many positive rights, which mandate active government protection of vulnerable citizens. Although the American constitutional tradition is typically thought to exclude positive rights, social movements’ many successful campaigns to shape state constitutions demonstrate that positive rights are an enduring element of the American legal tradition. Attention to the processes through which positive rights were included in state constitutions also broadens our understanding of the origins of constitutional rights. The proponents of state-level positive rights believed that these provisions would assist them in building active, welfarist governments not only by judicializing political conflicts, but also by compelling reluctant legislatures to enact protective policies, and even by insulating popular legislation from hostile courts.
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