It is a great pleasure to return once again to Stanford Law School, where in 1964 a J.D. degree launched me into a seven year legal career as a California Deputy Attorney General and what, to this point, has been an almost thirtyeight year career as a judge.

The class that I most enjoyed in law school was Constitutional Law, and I was fortunate to have Gerald Gunther as my professor. The educational experience provided by that class no doubt had a substantial bearing upon my decision to enter the field of public law.

Stimulating and comprehensive as Professor Gunther's course was, the subject of state constitutional law was rarely if ever mentioned here or elsewhere. Ultimately United States Supreme Court Justice William Brennan and my late colleague California Supreme Court Justice Stanley Mosk wrote extensively on the subject, but the focus has remained even to this day almost exclusively on the federal aspects of constitutional law...

Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. Even where moored to the text of a constitution, social and economic rights remain controversial. Among the criticisms, skeptics argue that constitutional provisions of this sort are ineffectual because courts cannot meaningfully enforce them against the government; positive rights are “just words” that can neither end inequality nor prevent poverty, and instead perversely hurt those they are intended to benefit. This Article examines the efficacy of positive constitutional rights from a different perspective: it considers the relation between the social and economic rights that are set forth in a subnational constitution and the development of private law doctrines of contract, torts, and property. Specifically, the Article examines the positive rights clauses that are included in some state constitutions in the United States and asks whether they can and should influence the state’s common law decision making.

Unlike the Federal Constitution, which consistently has been interpreted as excluding affirmative claims to government assistance, every state constitution in the United States—like many constitutions abroad—contains some explicit commitment to positive rights. The New York Constitution, for example, provides that “[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.” Other state constitutional clauses contemplate provision of public schooling; others guarantee respect for individual “dignity” or the pursuit of “happiness,” both of which may include a substantive component; still others recognize a worker’s right to unionize or guarantee a clean environment. State courts have treated some social and economic provisions as justiciable claims against the government, but others only as aspirational statements that cannot be judicially enforced...

Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (“substates”) have their own constitutions (“subconstitutions”). One can call this constitutional arrangement “sub-national constitutionalism,” or, for short, “subconstitutionalism.”

Americans understand subconstitutionalism as federalism. The national government controls the superstate; each of the fifty states is a substate. Constitutions exist at both levels. Other states, including Germany, Australia, Austria, Argentina, Brazil, Ethiopia, Switzerland, Mexico, Russia, Venezuela, Malaysia, and Canada, also have federalist or quasi-federalist systems with two-tiered constitutional structures. The integration of Europe has produced a quasi-federalist system. EU members have retained their constitutions even as they increasingly submit to a European government with its own constitution...

The year is 1993 and the Hawaii Supreme Court has just declared—as a matter of state constitutional law—that the state prohibition of same-sex marriage constitutes gender discrimination. Within a few years, thirty-five states enacted laws prohibiting the recognition of same-sex marriages and Congress, responding "to a very particular development in the State of Hawaii," enacted the Defense of Marriage Act. In Hawaii, voters overwhelmingly approved a state constitutional amendment authorizing the legislative prohibition of same-sex marriage. For Bill Eskridge, the Hawaii decision was disastrous, "provok[ing] the biggest antigay backlash since the McCarthy era." For Andy Koppelman, however, Hawaii "put the issue of same-sex marriage on the national agenda" and, in so doing, "was a triumph for gays."

Fast forward to 2003 and the Massachusetts Supreme Court's ruling that, under the Massachusetts Constitution, same-sex couples have a right to marry. Throughout the nation, Republicans seized upon this issue, using it to bolster their prospects in the 2004 elections. President Bush called for a constitutional amendment banning same-sex marriage; congressional leaders pushed both for that amendment and for legislation stripping federal courts of jurisdiction in same-sex marriage cases; state officials backed constitutional amendment proposals in thirteen states. And while there is some dispute about whether the same-sex marriage issue was decisive in President Bush's reelection or in Republican victories in Congress, there is little question that the Massachusetts decision did not sit well with a majority of Americans—as revealed both in public opinion polls and in voter approval of all thirteen same-sex marriage ban proposals. In Massachusetts, however, same-sex marriage carried the day—not only did 2004 efforts to derail the court's decision fail, Massachusetts voters rewarded opponents of a proposed constitutional ban on same-sex marriage (reelecting all opponents while ousting some proponents of the ban).

The story of marriage equality under state constitutions is quite mixed. The story begins when the Hawaii Supreme Court in Baehr v. Lewin indicated that strict scrutiny should be used for the prohibition of same-sex marriage on the ground it was gender discrimination. The court explained that it was solely a person’s sex that kept him or her from marrying someone of the same sex. The Hawaii Court remanded the case to the lower court for the application of strict scrutiny under the Hawaii Constitution’s use of this test for gender discrimination. Before this could occur, though, Hawaii voters amended their constitution to prevent marriage equality.

The Vermont Supreme Court found a right to same-sex civil unions, but not marriage for gay and lesbian couples. The Massachusetts Supreme Judicial Court in a historic ruling interpreted its state constitution to create a constitutional right to marriage equality. It rejected that civil unions could substitute for the right of gays and lesbians to marry. The New York Court of Appeals, though, rejected marriage equality under its constitution in a four-to-two decision…

California is ungovernable. The state’s annual budget charade might give one the impression that its governor and legislature are to blame. But in truth, it is out of their hands. Decades of “ballot-box budgeting,” where voters pass taxing and spending legislation by citizen initiative, has put more and more of the state’s budget out of the legislature’s control. While estimates vary, somewhere between seventy-seven and ninety percent of California’s general fund is “set in stone before the Legislature and governor even start negotiating.” With an increasingly small slice of the decision-making authority left to elected representatives, it is difficult to argue that California is still a representative democracy.

This fundamental change in California’s form of government did not happen overnight. Instead, with every election came a new set of initiatives that slowly and gradually set aside pieces of the general fund until there was nothing left. There was no one fatal blow to representative democracy in California; it suffered death by a thousand cuts...