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Theories of State Constitutional Interpretation

Thoughts on reading Judge Sutton's new book.

I recently read Judge Jeffrey Sutton's excellent new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. As readers may know, the book argues for a rejuvenation of state constitutionalism. Near the end of the book, Judge Sutton offers some practical ways that might happen. In his view, lawyers making constitutional claims should make them more often in state court; they should make constitutional arguments based on state constitutions; and state courts should prioritize state constitutional law claims over federal constitutional law ones. Part of the argument that caught my eye was also addressed to law schools and law professors. More law schools should offer more courses in state constitutionalism, Sutton argues. And more law professors should focus their work on state constitutionalism.

This raises an interesting question: Why don't more law professors write about state constitutions?

There are probably a bunch of reasons, but let me offer some amateurish speculation about just one. It seems to me that there aren't widely-known distinct theories of state constitutional interpretation. A lot of academic writing on federal constitutional law is about theories of interpretation. That subject tends to draw the most law-professor attention. But there doesn't seem to be a distinct set of theories on how to interpret state constitutions as compared to the federal constitution.

At least that's my sense from reading state court decisions, especially in my scholarly area of search and seizure law. State courts sometimes interpret their state search and seizure provisions as different from the federal Fourth Amendment. But they typically do so by simply reaching a different result using the same basic principles that federal courts follow. There are exceptions, but that seems to be the usual practice.

To be sure, there is at least some scholarly writing on distinct theories of state constitutional interpretation. Here's one example by a state court judge; here's another by a political science professor; and here's a third from a law professor.

But I would think there should be a lot more. The states have constitutional roles that are fundamentally different than the federal goverment. State constitutions often reflect particular histories and concerns that produced unique text and context. And state constitutions can put state judges in a different role. For example, state judges are often elected, and state constitutions can be fairly easy to amend. I can imagine arguments that these sorts of differences should lead state judges to favor different theories of state constitutional interpretation. You could envision some kind of broad set of theories of state constitutional interpretation that might suggest particular theories for particular states based on these differences.

There's at least some scholarly writing along those lines, as noted above. And my apologies if I missed more of it, which I very likely did. But this seems like a really rich area deserving more scholarly attention. And I suspect the interpretive angle would help attract more law professors, and more law schools, to focus more on state constitutional law.

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  • loveconstitution1789||

    One big change would be if lawyers were taught to actually read the US Constitution and state Constitutions.

    These founding documents tend to be simple and concise. Lawyers tend to manipulate between the lines to get what they want rather than being forced by tiny and limited government to simply say "sorry, there is no law for that". Disputes can be solved without every part of life being dictated by government rules.

    Another big improvement would be teaching lawyers that states dont have plenary powers anymore. The states did have plenary powers but gave up much power to join together in these United States of America.

    States are subject to federal review. States must amend their constitutions to add general powers like banning products and services.

  • loveconstitution1789||

    States must create general powers via their constitutions. The fact that pretty much every state does not want to do this is indicative of how we have lost our way as a Constitutional Democratic Republic.

    Amending state Constitutions can be relatively easier than amending the US Constitution.

    Doing so would admit again that power of the states is not plenary.

    Bans like the one on straws would require one more step, so we can laugh at your state even more than we do now. STRAW BANS! haha

    What a bunch of authoritarian pieces of shit.

  • loveconstitution1789||

    States must create general powers via their constitutions. The fact that pretty much every state does not want to do this is indicative of how we have lost our way as a Constitutional Democratic Republic.

    Amending state Constitutions can be relatively easier than amending the US Constitution.

    Doing so would admit again that power of the states is not plenary.

    Bans like the one on straws would require one more step, so we can laugh at your state even more than we do now. STRAW BANS! haha

    What a bunch of authoritarian pieces of shit.

  • loveconstitution1789||

    States must create general powers via their constitutions. The fact that pretty much every state does not want to do this is indicative of how we have lost our way as a Constitutional Democratic Republic.

    Amending state Constitutions can be relatively easier than amending the US Constitution.

    Doing so would admit again that power of the states is not plenary.

    Bans like the one on straws would require one more step, so we can laugh at your state even more than we do now. STRAW BANS! haha

    What a bunch of authoritarian pieces of shit.

  • loveconstitution1789||

    Sorry, Reason is so glitchy, I'm not sure why anyone would give them money.

  • Sarcastr0||

    Part of me would love to see this - laboratories of democracy providing some raw data on how various methods function.

    But I'm cynical about how this would turn out. I don't think it'd be a good, clean debate but rather another method by which one could suborn state governments, as we've seen with state legislatures. In other words, just another arena of bad faith accusations all around.

    At least by relying on the federal government you both insulate yourself from bad faith accusations.

  • Alexander Campbell||

    One thing I don't get about Judge Sutton's theory-- how does it jibe with originalism? Does the whole concept rest on the idea that identical provisions carried different original public meanings? Even when the constitutions were written at roughly the same to similar audiences (and many provisions are copied from each other)?

    I think promoting state constitutional law--apart from state constitutions that have distinct provisions, like the equal-education type provisions-- like this simply encourages judges to graft their own policy preferences onto a constitution that the (US) Supreme Court can't overrule.

    I guess I just need to get around the finishing the book...

  • DavidS-T||

    Alternatively you can say that it allows state judges to be genuine originalists even when SCOTUS justices are not...

  • Sarcastr0||

    It would seem to require one to allow that it is legitimate to look at other theories than originalism.

    Although even if you do not, these days there are enough flavors of originalism these days you could probably find 50 distinct kinds of 'em.

  • Alexander Campbell||

    One thing I don't get about Judge Sutton's theory-- how does it jibe with originalism? Does the whole concept rest on the idea that identical provisions carried different original public meanings? Even when the constitutions were written at roughly the same to similar audiences (and many provisions are copied from each other)?

    I think promoting state constitutional law--apart from state constitutions that have distinct provisions, like the equal-education type provisions-- like this simply encourages judges to graft their own policy preferences onto a constitution that the (US) Supreme Court can't overrule.

    I guess I just need to get around the finishing the book...

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