We argue for "democratic proportionality review" as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts themselves as democratically embedded actors, not countermajoritarian interlopers.
State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices, tiers of scrutiny, and rhetoric about the judicial role. The result is a growing jurisprudence filled with claims about the nature of rights, courts, and legislatures that bear no relationship to state constitutions or institutions.
This Article seeks to begin a new conversation about state constitutional adjudication. We first show how in myriad defining ways, state constitutions differ from the U.S. Constitution: they protect many more rights; temper rights with attention to communal welfare; include positive rights that identify government action as necessary to liberty; and emphasize rights required to sustain democracy. These distinctive founding documents, prizing individual and collective self-determination alike, require their own adjudication frameworks—not federal mimicry.
Although state constitutions differ markedly from their federal counterpart, they share features with constitutions around the world that courts implement using proportionality review. Perhaps unsurprisingly, practices associated with proportionality already appear in some state decisions. These decisions read constitutions in more holistic than clause-bound ways, meaningfully analyze the government’s actual reasons for its actions, and balance competing interests, paying special attention to core self-determination rights. Synthesizing and building on these practices, we argue for "democratic proportionality review" as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts themselves as democratically embedded actors, not countermajoritarian interlopers. After explaining how democratic proportionality review should proceed, we sketch some implications for contemporary debates about abortion, voting, and more.