Manoj Mate (Whittier Law School) has posted State Constitutions and the Basic Structure Doctrine (Columbia Human Rights Law Review, Vol. 45, No. 362, 2014) on SSRN. Here is the abstract:
Across the United States, voters in many states have enacted initiative constitutional amendments that abrogate protections for equality and fundamental rights. In most cases, state supreme courts have upheld the validity of these amendments, undermining protections for fundamental rights at the state level. This Article proposes a novel solution to this problem: it argues for the application of the basic structure doctrine in the review of constitutional amendments by state supreme courts. Under this doctrine, the Supreme Court of India (like constitutional courts in other nations) asserted the power to invalidate amendments that abrogate "basic features" of the Indian Constitution as defined by the Court. Drawing on this doctrine, this Article seeks to provide a methodological framework for articulating which foundational principles and rights should be entrenched within the constitutional framework. For instance, the application of the basic structure doctrine would help address several flaws in the California Supreme Court’s revision-amendment standard applied in Strauss v. Horton. In Strauss, the majority upheld Proposition 8, the initiative measure banning same-sex marriage, as a constitutional amendment.
Constitutional review at the state level is likely to garner increased attention as a result of the U.S. Supreme Court’s recent decisions in Hollingsworth v. Perry and U.S. v. Windsor. These decisions can arguably be read to stand for "rights federalism," the concept that state governments will have the final say in defining the range and scope of fundamental rights protections. Although the U.S. Supreme Court may define and set a "floor" of guaranteed federal constitutional rights, in light of the decisions in Perry and Windsor, state supreme courts will continue to play a key role on these issues.
This Article frames the potential application of the basic structure doctrine at the state level within theories of constitutional change, and the tension between conceptions of popular sovereignty and rights federalism. I argue that the basic structure doctrine would advance the cause of "rights federalism" by enabling state supreme courts to provide for stronger protections of fundamental rights than does the Federal Constitution. State constitutions are far more malleable than the federal Constitution and consequently, state supreme courts can play a crucial role in shielding rights from abrogation by popular majorities. The Article concludes by exploring the potential implications of adoption of a basic structure doctrine for democratic theory and theories of constitutional change, the tension between popular sovereignty and federalism.