The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This post is Part II of my interview with Judge Jeffrey Sutton about his new book on state constitutions, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Part I is here.
5. You argue that state and federal constitutional law should be in dialogue with each other. Can you tell us how that dialogue should work? What kind of benefits can we expect from it?
One virtue of taking state constitutional law seriously is that it benefits federal constitutional law. All methods of interpreting the federal constitution would benefit from rigorous and independent interpretations of state court constitutions by state court judges. For the originalist, state constitutional law is indispensable. Just look at the U.S. Supreme Court's decision in Heller if you doubt the pertinence of looking at the provenance of our bedrock guarantees. The pragmatist benefits from state law developments in a different way. Anyone interested in what works in practice, or concerned about what happens if the U.S. Supreme Court declines to enter the field, will be grateful for independent state court decisions. Just as we build common law doctrines from the ground up, whether in torts, property, or contracts, so we might consider doing the same with constitutional law. Allow a state or two to experiment in addressing a new problem, to be the first responder in this area or that one, after which other state courts (or state legislatures) can decide whether to follow that path or mark a new one. After the evidence is in, the pragmatist judge can decide whether to nationalize the issue, to allow more time, or to leave the issue to the States.
It would seem to be a caricature of living constitutionalism to say that it is only inward looking, as solely about a judge's personal preferences. To justify an evolved meaning of a federal constitutional guarantee, the judge should be able to say that, if the interpretation does not have the support of the people of 1789 or 1868, it has the support of the people today. One salient place to look for that support is the States. State constitutional law decisions, like recent state legislative developments, potentially offer a rich source of evidence of shifting societal norms for those inclined to premise federal constitutional rulings on that ground.
Just as American citizens benefit from laboratories of policymaking experimentation by state legislatures, they can benefit from laboratories of interpretation by state courts. And that is true for everyone, whether they prefer originalist, pragmatic, living constitutionalist, or any other method (or sub-method) of interpretation. When done at the state level, every method of interpretation offers lessons for like-minded members of the U.S. Supreme Court. The one thing we all should be able to agree about is that new approaches to an issue would profit from initial experimentation at the state level, whether it is a new approach to substantive due process or natural law or some other innovation.
6. Currently, the curriculum at most law schools pays little attention to state constitutional law. Should that change? What kinds of courses on state constitutions would you like to see?
The vast majority of law schools do not teach state constitutional law. But they all offer a course on "Constitutional Law," which teaches just half of the story, focusing on federal constitutional law cases and largely (sometimes completely) ignoring related state constitutional law decisions. A law school should preserve this status quo for as long as it remains comfortable graduating lawyers half-equipped to represent clients faced with an overreaching state or local law.
A law school wishing to correct this deficit has two options. One is to offer a class on state constitutional law. To be clear, I do not mean a course based solely on one State's constitution. I have never taught the class that way. I instead would suggest a traditional survey course on the subject. Just as state law courses on property, torts, and contracts use representative examples of state court opinions from around the country, so too should a course on state constitutional law. There are plenty of excellent state court opinions to work with. The other option is to teach American Constitutional Law, a class that would cover the pertinent federal court cases and juxtapose them with pertinent state court cases. Any other approach is a little like offering a course on civil procedure and neglecting to tell the students that there are federal and state courts and federal and state court rules of civil procedure.
In a recent panel discussion about state constitutional law, I had the good fortune of meeting Jay Ranney, a private practitioner in Wisconsin and a part-time legal historian. He passed along an observation from Leonard Levy that inspires him and helps to explain my interest in the state courts and state constitutional law: "[A] society reveals itself in its law and nowhere better than in the reports of the decisions of the state courts. The state reports, are, however, the wasteland of American legal history … [The work of state judges] is undeservedly unstudied. So long as that condition exists, there can be no history of American law, and without it, no adequate history of this nation's civilization." Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw 3 (1957).
7. Many state judges are elected, unlike federal judges, all of whom are appointed for life. Does this difference have any implications for the argument you advance in 51 Imperfect Solutions?
The manner of selection and tenure of most state court judges—elections for defined terms—may help to explain our lack of appreciation for state court judges and state constitutions. How can one trust majoritarian-elected judges to enforce counter-majoritarian guarantees, the thinking goes? Rather than comment on the relative merits of the different judicial selection methods—debates that grow in intensity the more power a given court exercises—I might question our assumptions about the issue. Are the federal courts really that counter-majoritarian, and, when so, is it for better or worse? And what of the state courts? Are they really that majoritarian and, when so, is it for better or worse? One reason for examining the American Constitutional Law debates in the book—school funding, the exclusionary rule, involuntary sterilizations, and compelled flag salutes—is to identify some nuances and complexities about these assumptions. As I can attest from my experience as a state-court advocate, the election of state court judges does not invariably stand in the way of counter-majoritarian claims. Sometimes, it seemed to me, the election of state court judges helped the proponents of change, those seeking to recognize a new constitutional right under the state constitution. At any rate, the point of telling these four stories is to examine the performances of the federal and state courts and the dialogue that developed between them in some instances and not in others.
8. Are there any areas of constitutional jurisprudence in which we are likely to see particularly great improvements if state courts adopt a more independent approach to interpreting state constitutions, as you recommend?
State constitutional law innovation has occurred most frequently when the U.S. Supreme Court has rejected an effort to nationalize a constitutional right, when the Court has stayed its hand for a meaningful period of time, or (in some instances) when Congress has declined to adopt a nationwide policy in a given area. If past is precedent, one would expect the same in the future.
Besides that, the question is a local one, most often this one: Is a U.S. Supreme Court decision interpreting a federal guarantee consistent with the text, history, and precedent of that State's guarantee? If not, state courts are free to offer more or less protection in construing their own guarantee. In a healthy federalist system, one would anticipate differences of opinion on all manner of current rights disputes, whether structurally focused (e.g., delegation or deference to agencies), liberty focused (e.g., criminal law, equal protection, free speech, due process, or religion) or property focused (e.g., takings or impairment of contracts).
As a judge, I try to keep up with the most recent scholarship about constitutional interpretation. But I often run short on time, leaving me occasionally missing the distinction between one school of thought or another or wondering how I would answer a difficult hypothetical raised by an advocate of a given approach. Even so, I continue reading these articles and blog posts because they contain valuable insights. So long as these debates remain focused on winner-take-all-disputes at the U.S. Supreme Court, however, the stakes are very high—perhaps too high to generate a lasting consensus. But the many useful insights in these debates leave me puzzled why so few scholars engage the state courts on these issues and urge them to embrace a given methodology. It seems like a missed opportunity. Just as an engaged marketplace of ideas has been healthy for American democracy, so an engaged marketplace of interpretation might be healthy for American courts.