There is landmark legislation currently pending before the General Assembly that seeks to provide something most Rhode Islanders thought they already had: a remedy for violations of their state constitutional rights. And despite the urgency and necessity of this legislation, there is no indication that it is slated for passage.

As a result of a series of state and federal court decisions over the past 25 years, nearly every constitutional right protected under the state constitution—including freedom of speech, freedom of assembly, due process, freedom from unreasonable search and seizure, and freedom from cruel and unusual punishment—have been rendered unenforceable because they were not deemed “self-executing.” Even though these rights were all created as a result of state referenda approving the state constitution in 1842 and subsequent amendments thereto, these court decisions have held that state constitutional protections are not enforceable in the absence of enabling legislation enacted by the General Assembly. Accordingly, despite the fact that the people have spoken clearly and emphatically, it does not matter: Rhode Islanders have no enforceable state constitutional rights.

Previously it had been assumed, and some court decisions had held, that there was an implied right of action to enforce state constitutional rights. This is no longer the case. At the current time, rights guaranteed under the Constitution of the State of Rhode Island are little more than suggestions or aspirational ideals.

While Rhode Islanders can seek relief for violations of parallel federal civil rights and liberties under 42 U.S.C. § 1983, the enforcement statute passed by Congress over 150 years ago to enforce federal constitutional rights, that statute is of limited benefit for two reasons: First, the state constitution contains additional rights not protected under the federal constitution—such as the rights of victims of crime under Art. 1, Sec. 23, the right to a fair and prompt remedy for wrongs under Art 1. Sect. 5, and fishery and shoreline rights under Art. 1, Sec. 17. Second, the federal enforcement statute also frequently leaves injured parties without a remedy because: 1) it does not apply to conduct by a state government—it only applies to people acting under color of law or municipalities who by policy or custom condone the conduct expressly or by inaction or by failure to train, supervise, or discipline the perpetrator; and, 2) individuals acting under color of law have qualified immunity—a giant loophole that says if the perpetrator did not know his or her conduct was a violation of “well-settled” constitutional law as evidenced by a prior decided case involving the same or similar facts, there is no remedy even if the aggrieved party’s constitutional rights were violated.

Accordingly, if Rhode Island constitutional protections are going to mean anything, the General Assembly must enact an enforcement statute. Currently, 23 states either have an enforcement statute or an implied right of action under their state constitutions to provide civil remedies for individuals who suffer injury due to a violation of their statue constitutional rights. As an additional point of interest, the Warwick City Council has recently passed a resolution in support of the legislation.

Anyone who believes their state constitutional rights ought to be enforceable should contact their state representative or senator and the House Speaker at rep-shekarchi@rilegislature.gov and Senate President at sen-ruggerio@rilegislature.gov and let the General Assembly know yet again that their state constitutional rights are not merely aspirational ideals, and to vote for passage of the Rhode Island Civil Rights Enforcement Act, H 7635 and S 2675.

Richard A. Sinapi is a long-time practicing employment and civil rights attorney and lobbyist and has taught civil rights and civil liberties as an adjunct professor at Bryant University in Rhode Island