Emily Zackin’s primary purpose in this book is well captured in its title. As she argues, scholars have “leapt effortlessly, and indeed unconsciously, from the assertion that the federal Constitution lacks positive rights to the claim that America lacks positive rights, at least at the constitutional level. It is this error that I endeavor to correct” (p. 2). To this end, she undertakes extensive studies of “three political movements to add these kinds of positive rights to state constitutions: the campaign for education rights, which spanned the nineteenth and twentieth centuries, the movement for positive labor rights, which occurred during the Gilded Age and Progressive Era, and the push to add environmental bills of rights to state constitutions during the 1960s and 1970s” (p. 3).

Zackin is concerned not only with demonstrating that “Americans have a long tradition of enshrining positive rights in constitutions” (p. 11) but also with showing that these movements can yield “new insights into why people engage in constitutional politics, and why they try to create new constitutional rights” (p. 13). In particular, she takes issue with the “reigning theory about the origins of new textual rights” that views them as “products of elite entrenchment projects” and therefore holds that “rights are created by dominant regimes . . . in an attempt to maintain the status quo . . . by ushering the judiciary into politics” (p. 14). To the contrary, Zackin argues: “When we examine the origins of America’s positive rights, it quickly becomes apparent that the proponents of new constitutional rights need not hold positions of legislative dominance, are not always seeking to preserve the status quo, nor are they consistently hoping to usher the judiciary into politics” (p. 14).

In advancing these two main arguments, this book has something to offer scholars of American political development, state constitutionalism, and constitutional theory. Students of American political development who focus almost exclusively on federal governance will benefit from Zackin’s attention to state politics. Analyses of state constitutional positive rights—whether provisions requiring a thorough and efficient school system, providing for safe working conditions, or establishing the right to a clean environment—have been a staple of state constitutional scholarship. But this work has generally appeared in law reviews and book chapters and has not had broad influence on American political development scholars, who continue to focus on the U.S. Constitution and U.S. Supreme Court.

As the first book-length project examining and explaining adoption of state constitutional positive rights, Looking for Rights in All the Wrong Places should draw renewed attention to the role of positive rights in the American political tradition and the reasons why these rights are prominent in state constitutions but absent from the U.S. Constitution. As Zackin shows, state governments have been responsible for much of the governance that has taken place in the United States. State constitutions are also more easily changed than the U.S. Constitution. It is not surprising, therefore, that groups seeking protection for positive rights often pressed their case at the state level and enjoyed more success through state constitutional amendment processes.

Of course, the flexibility of state amendment processes and detailed nature of state constitutional provisions have led some scholars to “dismiss state constitutions as failures of higher lawmaking” and “unworthy of their titles” (p. 15). In weighing in on this debate about whether state constitutions are constitutional documents in any meaningful sense, and coming down strongly in favor of the position that they are “the products of debates about fundamental political values and sites of thoughtful and serious lawmaking” (p. 15), Zackin makes an important contribution to state constitutional scholarship. She notes that “If we take the U.S. Constitution as a model, it can be quite jarring” (p. 20) to encounter state constitutional provisions dealing with fishing nets (in Florida), grain elevators (in Oklahoma), or, most famously in view of the criticism it has generated, ski trails (in New York). However, in a particularly insightful chapter that considers and rejects various reasons why some have viewed provisions of this sort as casting “doubt on whether these constitutions are really constitutional at all” (p. 18), the author shows that “even the notorious ski trails provision reflects quintessentially constitutional aims” (p. 19).

As Zackin explains, although some state constitutional provisions may seem “[o]ut of context” as “not deserving of constitutional treatment, they are better viewed “upon closer inspection” as “purposeful, sensible, and principled” responses to various problems of governance (pp. 31, 32). In the case of New York’s 1941 amendment authorizing construction of ski trails in the state’s forest preserve, she shows that this provision had its origin in, and was necessitated by, an 1894 Forever Wild provision enacted because “the legislature (and its forest commission) could not be trusted to make decisions about the use or health of the state’s wilderness” (p. 30). In light of this long-standing constitutional commitment, it became necessary a half century later to amend the constitution in order to authorize construction of ski trails in the wild forest lands. Zackin concludes that this amendment is emblematic of other state constitutional provisions whose specificity “is not an indication of their triviality, but a mechanism through which their framers hoped to limit government’s choices in order to ensure that its officials would act in accordance with principled commitments” (p. 32).

In addition to showing that state constitutions are worthy of being treated as principled documents, Zackin’s most important theoretical contribution is to draw lessons about the motivations and purposes animating the adoption of constitutional provisions. To the extent that scholars have settled on entrenchment theory as the dominant explanation for the origin of constitutional provisions, the author demonstrates convincingly that this theory cannot account for the adoption of many state constitutional positive rights. To be sure, she finds some support for entrenchment theory, insofar as “environmental and educational activists in the late twentieth century drafted and lobbied for constitutional provisions precisely in order to judicialize these policy areas, hoping that litigation would protect and even extend their preferred policies” (p. 54). For the most part, though, she stresses the degree to which education, labor, and environmental rights provisions did not originate with the dominant legislative coalition and were not intended to entrench current policies or empower courts.

As Zackin’s rich case studies make clear, a comprehensive account of constitutional politics should acknowledge that “people pursue constitutional change for purposes other than the long-term entrenchment of their favorite policies” (p. 61). In many cases, particularly regarding labor rights, groups were seeking to preempt or overturn hostile court rulings. In other cases, as with the adoption of education provisions, groups were seeking to pressure legislatures to adopt favored policies. In still other cases, such as the move to adopt environmental rights, groups were engaged in part in movement building. The point is not to supplant entrenchment theory, which can go a long way in explaining constitutional development in other countries, but rather to supplement it, especially by taking account of the opportunities for changing American state constitutions in ways that bypass dominant political coalitions and officeholders, such as through revision conventions and the initiative process.

Looking for Rights in All the Wrong Places deserves a broad readership among students of American political development, state constitutionalism, and constitutional theory and makes strong contributions in each of these fields, in part by highlighting the role of positive rights in the American political tradition, in part by taking state constitutions seriously, and most importantly by challenging the dominant understanding of the purposes of constitutional provisions.