This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held or applied by state courts. Finally, it compares these conceptions to the Hohfeldian conceptions of individual rights and powers exhibited in federal adjudication of claims challenging congressional exercises of legislative power, and it assesses this evidence for the convergence or divergence of rights conceptions in the two systems.

Unlike most prior treatments of convergence and divergence, this Article's inquiry focuses on provisions in state constitutions that have no obvious federal analogues. It considers these affirmatively stated provisions to be uniquely suited to such an inquiry, as one would expect state conceptions of rights to diverge from general federal conceptions of rights where state courts interpret and apply such provisions. In fact, though, this Article identifies substantial convergence between federal and state approaches to individual rights and legislative powers, even where the unit of state constitutional analysis has no federal constitutional analogue. It terms this phenomenon "conceptual convergence."

It is surprising that conceptions of individual rights and legislative powers in state and federal courts largely converge, even where the unit of analysis is a state constitutional enumeration with no federal analogue. Nevertheless, this Article contends that the Hohfeldian conceptions of legal relationships employed in federal courts, when reconfigured in light of the unique textual and structural features of state constitutions, can provide the highest state courts with a ready means for avoiding institutional conflicts while fulfilling their roles as interpreters and protectors of state constitutional rights. It concludes by presenting a foundation for the development of a more protective, yet generally less intrusive, jurisprudence of affirmative rights in state courts.

Document Type


Publication Date

Winter 2011


Notes/Citation Information

George Mason Law Review, Vol. 18, No. 2 (Winter 2011), pp. 301-366



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