The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.