By: Evan Dale, Volume 107 Staff Member
As the U.S. Supreme Court has retreated on its protection of individual rights, state constitutions have taken on a renewed interest. This became as evident as ever in 2022. With the Supreme Court stripping the rights of women to choose to have an abortion, many state constitutions became the last line of defense protecting this right. From abortion to LGBTQIA+ rights and rights for criminal defendants, state constitutions are a unique fount and protector of individual rights. With this retreat accelerating at the federal level, the Minnesota legislature has an opportunity to expand the protection of individual rights through the passage of the Equal Rights Amendment.
I. THE MINNESOTA CONSTITUTION AND ITS AMENDMENT PROCESS
The Minnesota Constitution has an extraordinary history. The State of Minnesota, technically, has three constitutions. Drafted in the looming shadow of the Civil War, Minnesota Territory Democrats and Republicans disagreed greatly on its text. The disagreements were so stark that the two parties drafted constitutional language separately across St. Paul. The two camps did ultimately agree to compromise, adopting the state’s founding constitution. However, numerous inconsistencies existed between the two drafts, stemming from the separate drafting processes, resulting in two separate, handwritten texts emerging. When the people of Minnesota voted to ratify a constitution, no distinction was made on which of the two constitutions was actually being adopted. Regardless, the Minnesota Constitution(s) was accepted with overwhelming support. Ratified before the incorporation of the U.S. Bill of Rights to the states, the Minnesota Constitution was understood to be the primary protector of its citizens’ rights. Section 16 of the document emphasizes this role, stating that the constitution protects more than just the rights specifically enumerated.
The Minnesota Constitution was updated to its current structure in the 1970s. The state established a commission to modernize the text of the constitution(s) without altering its common law interpretation. The updated constitution, passed by the legislature and ratified by a popular vote in 1974, abridged much of its text without changing its meaning, including its broad protection of individual rights. Since 1974, the constitution has been updated on numerous occasions with new constitutional amendments.
Relative to the U.S. Constitution and other state constitutions, the Minnesota Constitution can be amended with ease. Two steps are required to amend the Minnesota Constitution. First, the legislature must introduce and accept a proposed amendment. Both chambers must agree to the amendment by a simple majority. The Governor plays no role in accepting or vetoing the proposed amendment. The second step is ratification by a popular vote. A majority of all those voting in the election—not just those who vote on the amendment proposition—are required to accept the amendment. Since becoming a state, Minnesota has voted on 213 constitutional amendments, adopting 120 (56%) of them, with the most recent addition in 2016. This leaves an advantage for rights-focused legislators to get the ball rolling on constitutionalizing individual rights protections.
II. THE MINNESOTA CONSTITUTION’S PROTECTION OF INDIVIDUAL RIGHTS AND THE EQUAL RIGHTS AMENDMENT
Regardless of its textual discrepancies, the Minnesota Constitution has always emphasized its role in protecting individual rights. Its origins as the sole protector of Minnesotans’ rights are clear in its text and structure. The Minnesota Constitution, like some other state constitutions, confers positive rights that are held by individual Minnesotans. The U.S. Constitution, on the other hand, is a constitution of negative rights, placing restrictions on the government’s ability to interfere with individuals. Further, unlike the U.S. Constitution, Minnesota’s Bill of Rights is placed at the front of the document rather than the back. The Minnesota Bill of Rights is also significantly longer and more detailed than its federal counterpart, including seventeen sections to the federal constitution’s original ten. The protection of individual rights percolate through sections in all fourteen articles of the constitution. Minnesota’s current legislature can continue this history and tradition by initiating the process of creating new constitutional amendments that protect individual rights.
III. THE MINNESOTA LEGISLATURE SHOULD PASS THE EQUAL RIGHTS AMENDMENT TO BROADEN THE MINNESOTA CONSTITUTION’S PROTECTION OF INDIVIDUAL RIGHTS
This session of the Minnesota Legislature has done a tremendous job codifying protections for individual rights. This has included expanding statutory protections for abortion and voting rights, with more potential changes on the way. However, these protections lack the permanence of a constitutional amendment.
One proposed amendment pending in the legislature would help further protect individual rights. State Rep. Koahly Vang Her and multiple State Senators have introduced the “Equal Rights Amendment” to the Minnesota Constitution. The amendment states: “Equality under the law shall not be abridged or denied by this state or any of its cities, counties, or other political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” The bill would also create the subsequent ballot measure for Minnesotans to vote on the amendment in the 2024 general election. The Legislature should support and pass the measure to expand the Minnesota Constitution’s protections of individual rights.
Ratifying the Equal Rights Amendment comes with critical benefits. While Minnesota state statute already codifies many of these protections, adopting the Equal Rights Amendment has critical advantages. The first is that the text of the amendment is broader than the existing codified protections. The Minnesota Human Rights Act, the primary statutory analog to the proposed amendment, was intended to provide five primary areas of protection. The Equal Rights Amendment applies broadly to all areas of law. It also specifies protections for sexual orientation and gender identity, two areas where Legislature is already moving to make improvements. Further, its adoption would also follow the majority of other states that have equal rights amendments in their state constitutions.
Constitutionalizing the protections in the ERA is also important. Constitutional amendments are more permanent than statutory text, making them harder to repeal. To strip the Minnesota Constitution of an amendment, it must go through the entire amendment process again. This ensures longevity for its protections. Constitutional ratification can also impact how courts apply and interpret its text. Interpretations of constitutional text can tend to be broader and more encompassing than statutory interpretations, providing wider impact and protection. Constitutional amendments also reign supreme over statutory text, allowing the preemption of laws that conflict with it. Finally, constitutions are a statement of a state’s values. Clarifying that Minnesota protects and values the rights of all of its citizens is a crucial message for the legislature to send at this moment. With the passage of the Equal Rights Act, Minnesota can do just that.
The Equal Rights Amendment provides the most recent opportunity to protect individual rights in Minnesota. Building on the Minnesota Constitution’s tradition of protecting individual rights, the legislature should pass the Equal Rights Amendment and constitutionalize its protections.
 See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 490–91 (1977); Fred L. Morrison, An Introduction to the Minnesota Constitution, 20 Wm. Mitchell 287, 288 (1994).
 Dobbs v. Jackson Women’s Health Org., No. 19-346, slip op. at 1 (U.S. 2022).
 See, e.g., Hodes & Nauser, MDS, P.A. v. Schmidt, 440 P.3d 461 (Kan. 2019) (finding that the Kansas state constitution protected the right to an abortion); Dylan Lysen, Laura Ziegler & Blaise Mesa, Voters in Kansas Decide to Keep Abortion Legal in the State, Rejecting an Amendment, NPR (Aug. 3, 2022), https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment [https://perma.cc/X956-CMAQ].
 See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) (striking down Kentucky’s anti-sodomy laws as unconstitutional).
 See, e.g., Claudio v. State, 585 A.2d 1278 (Del. 1991) (holding that the Delaware state constitution required a defendant be convicted by a unanimous jury).
 Morrison, supra note 1, at 287.
 Id. at 285.
 Id. at 286.
 Terrence J. Fleming & Jack Nordby, The Minnesota Bill of Rights: “Wrapt in the Old Miasmal Mist,” 7 Hamline L. Rev. 51, 56–57 (1984).
 Minn. Const. art. 1, §16.
 Morrison, supra note 1, at 297–99.
 Paul Rader, How Do States Amend Their Constitutions?, Medium (Nov. 1, 2018), https://paulrader-42650.medium.com/how-do-states-amend-their-constitutions-3549e4f2cf90 [https://perma.cc/VBF7-DKTM].
 State Constitutional Amendments, MN House Rsch. (Jan. 2019), https://www.house.mn.gov/hrd/pubs/ss/ssconamend.pdf [https://perma.cc/G2N8-BP23].
 Id.; Amendments Proposed to the State Constitution, Off. of Minn. Sec’y of State Steve Simon, https://www.sos.state.mn.us/about-minnesota/minnesota-government/amendments-proposed-to-state-constitution [https://perma.cc/SP9T-HU6M].
 State Constitutional Amendments Considered, Minn. Legis. Reference Libr., https://www.lrl.mn.gov/mngov/constitutionalamendments [https://perma.cc/Z7C4-VYNL].
 Cf. Understanding the Difference Between Positive and Negative Rights, Ala. Pol’y Inst., https://alabamapolicy.org/wp-content/uploads/2020/11/GTI-Brief-Positive-Negative-Rights-1-1.pdf [https://perma.cc/UF5U-AP89] (describing the difference between negative and positive rights).
 Minn. Const. art I.
 U.S. Const. amend I–X; Minn. Const. art I, §§1–17.
 Morrison, supra note 1, at 300.
 Steve Karnowski, Minnesota Governor Signs Broad Abortion Rights Bill into Law, Associated Press (Jan. 31, 2023), https://apnews.com/article/abortion-politics-minnesota-state-government-timothy-walz-11c3b1d5269c929e442b979ff1bac73b [https://perma.cc/8EAG-YUXS].
 Sydney Kashiwagi, Minnesota Governor Signs Bill Expanding Voting Rights for Ex-felons, CNN (Mar. 3, 2023), https://www.cnn.com/2023/03/03/politics/tim-walz-minnesota-voting-rights/index.html [https://perma.cc/M6JH-3U7G].
 Clare Oumou Verbeten, Minnesota has a lot to be Prideful of when it Comes to LGBTQIA+ rights. On Wednesday, the Judiciary Committee Heard my Bill, the Take Pride Act to Update the Minnesota Human Rights Act to Modernize our Law and Support our LGBTQIA+ Community., Instagram (Mar. 7, 2023), https://www.instagram.com/p/CpgJ2WqJ4Nx.
 HF 173: Bill Text Versions, Off. of the Revisor of Statutes, https://www.revisor.mn.gov/bills/text.php?session=ls93&number=HF173&session_number=0&session_year=2023&version=list [https://perma.cc/6KMH-EQR7].
 Minn. Stat. § 363a.01 et. seq.
 Id. at .02.
 HF 173, supra note 34.
 Oumou Verbeten, supra note 32.
 State-Level Equal Rights Amendments, Brennan Ctr. for Just., (Aug. 26, 2022), https://www.brennancenter.org/our-work/research-reports/state-level-equal-rights-amendments#minnesota [https://perma.cc/8P6H-LQMZ].
 Cf. Stephen Wermiel, SCOTUS for Law Students: Interpreting Statutes, SCOTUSblog (Feb. 18, 2015), https://www.scotusblog.com/2015/02/scotus-for-law-students-interpreting-statutes/ [https://perma.cc/3ZTA-K4FT] (discussing the differences in breadth of the U.S. Supreme Court’s constitutional and statutory interpretation).
 Jeff King, 3. Constitutions as Mission Statements, in Social and Political Foundations of Constitutions 73–102 (Denis J. Galligan & Mila Versteeg eds., 2013).