#3 State Constitutional Law Lecture: Affirmative Rights and Interpretive Approaches

Case Studies in Affirmative Rights in New Mexico Constitutional Jurisprudence

• The transcript identifies two primary examples of attempts to establish "affirmative rights" within the state of New Mexico: $Yazzie\ Martinez$ and $Atencio$.

• An affirmative right is defined as a right that citizens hold against state government entities, requiring the government to take specific, sufficient actions.

• $Yazzie\ Martinez$ Case:
      - This case is cited as a successful example where the court went "all the way" to articulate and establish an affirmative right.
      - The litigation involved MALDF ($Mexican\ American\ Legal\ Defense\ and\ Educational\ Fund$).

• $Atencio$ Case:
      - This case involved the pollution control provision within the New Mexico Constitution.
      - The plaintiffs in $Atencio$ sought to mirror the success of MALDF in $Yazzie\ Martinez$ by establishing a "grand sweeping" affirmative right.
      - The goal was to mandate that the state government perform a "sufficient amount" for pollution control.
      - This affirmative right would have been held by New Mexicans against specific state departments, including:
          - The Environment Department.
          - The Natural Resources and Minerals Department.
      - Unlike results in other states—where state supreme courts and constitutions have recognized a "judicially enforceable right to a clean environment"—the $Atencio$ case was unsuccessful in New Mexico.

The Fourth Axis of Difference: Analogous Negative Rights

• The fourth axis upon which state constitutions and the federal constitution differ concerns "analogous negative rights."

• Definition: These are rights existing in the federal constitution that possess substantially the same text and scope in state constitutions.

• Examples of Analogous Rights:
      - The $1^{st}$ Amendment: The right to free speech.
      - The $4^{th}$ Amendment: The right against unreasonable searches and seizures.
      - The Equal Protection Clause: The right to equal protection under the law.
      - The Due Process Clause: The right to due process.
      - The $2^{nd}$ Amendment.
      - The $14^{th}$ Amendment (which applies everywhere in the United States).

• Every individual in the United States is subject to two distinct bodies of negative rights: the federal constitutional rights and the state-level constitutional analogs.

• State constitutions may differ from the federal baseline by being interpreted as "stronger" or providing "more protection."

Methodologies for Interpreting Overlapping Constitutional Rights

• When both federal and state constitutional rights apply to a situation (e.g., a car search by a state police officer), state courts must determine how the two sets of rights relate.

• The lecture references $3$ primary sources for these interpretive methodologies:
      - The New Mexico Supreme Court decision in $State\ v.\ Gomez$.
      - Judge Sutton's book.
      - A law review article by New Mexico attorneys Linda Vanzi and Mark Baker.

• There are $3$ specific approaches to this relationship:

1. The Lockstep Approach:
       - State courts apply the state constitutional right in the exact same manner as the federal constitutional right.
       - Under this approach, the state right goes no further and provides no more protection than the federal right.
       - Explicit Note: New Mexico does not use the lockstep approach.

2. The Primacy Approach:
       - Described by Judge Sutton, this requires the state court to begin the analysis with the state constitutional right.
       - The state right is applied first. If the claimant or plaintiff prevails under the state right, the case is concluded without ever reaching the federal constitutional question.
       - Explicit Note: New Mexico does not use the primacy approach.

3. The Interstitial Approach:
       - This is the approach used in New Mexico.
       - The court begins the analysis with the federal right.
       - If the claimant loses under the federal right (i.e., the federal right does not protect them), the court then turns to the state right.
       - The court evaluates whether the state right should be applied more expansively than the federal right, based on the specific traditions, jurisprudence, and case law of that state.

Questions & Discussion

• Administrative Note: The speaker mentioned they would be checking their UNM email account periodically for any follow-up questions from students.

• Miscellaneous References:
      - The speaker briefly referenced the $6^{th}$ Amendment convention.
      - A student or speaker mentioned "$Montgomery$" at the end of the session, noting "That's dead, didn't I?" regarding a specific legal point or case status.