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OHIO STATE LAW JOURNAL ONLINE
Bringing Context To Legal Battles over Trans
Rights - A Reply To Professor Yeargain
JONATHAN L. MARSHFIELD*
TABLE OF CONTENTS
I. IN TRO D U CTIO N ................................................................................1
II. RIGHTS AND CONSTITUTIONAL ENTRENCHMENT .............................3
III. RIGHTS OR POWER ...........................................................................6
IV. LAYERED CONSTITUTIONAL RIGHTS ................................................7
V . C O N CLU SIO N ..................................................................................10
I. INTRODUCTION
Popular and academic discourse about American public law is all too often
oversimplified and reductionist. For example, many commentators and scholars
view American constitutional law as mostly about the United States
Constitution and how the United States Supreme Court interprets it.1 The reality,
however, is much more complex across a variety of dimensions. American
constitutionalism is a nuanced, interconnected web of different texts, actors and
institutions, nodes of political power, and communities of interest. One
neglected dimension in the study of American constitutional law is the complex
interaction between state and federal constitutional law in the protection and
development of constitutional rights.
In Litigating Trans Rights in the States, Professor Yeargain provides an
important and nuanced take on how and why trans rights advocates should take
a more holistic approach to American public law.2 Specifically, Professor
Yeargain argues that trans rights advocates should pursue their claims under
state constitutions while also making claims under the federal constitution.3 I
see three core arguments in Professor Yeargain's article in support of this claim.
First, they argue that even when the Supreme Court finds an applicable federal
constitutional right, state constitutional rights can augment the federal right in
important ways and provide a failsafe against Supreme Court backtracking.4
* Associate Professor of Law, University of Florida Levin College of Law.
1 See generally, e.g., James B. Thayer, The Origin and Scope of the American Doctrine
of Constitutional Law, 7 HARV. L. REv. 129 (1893); James A. Gardner, The Failed Discourse
of State Constitutionalism, 90 MICH. L. REV. 761 (1992); Rachel E. Barkow, More Supreme
than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy,
102 COLUM. L. REv. 237 (2002).
2See generally Quinn Yeargain, Litigating Trans Rights in the States, 85 OHIO ST. L.
J. (forthcoming 2024).
3 See id. at 6.
4See id. at 10-14.
2024]1
1](ViewImageLocal?handle=hein.journals/furth85&div=1&collection=&method=preview&ext=.png&size=3)
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