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85 Ohio St. L.J. Online 1 (2024)

handle is hein.journals/furth85 and id is 1 raw text is: 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