State constitutionalism is on the rise, and you need only check the headlines — same-sex marriage, health care reform — for confirmation.
California’s Proposition 8, after all, amended the California Constitution to recognize only male-female marriages, a provision that may or may not violate the U.S. Constitution. And several states, in seeking ways to fight federal health care mandates, have resorted to constitutional amendments or statutes as well. Tension between the U.S. Constitution and the charters of the states is at a high point.
The Conference of Chief Justices, which comprises the top jurists of the 50 states, recognized the trend with a resolution earlier this year urging law schools to teach state constitutional law — which, the justices noted, all lawyers swear to uphold along with the U.S. Constitution when they join the profession. A conference on state constitutional law will be held in November at the University of Kansas School of Law.
And now, there’s a new casebook on the subject: State Constitutional Law: The Modern Experience, published by West. It’s by a notable quartet of authors: Jeffrey Sutton, a judge on the U.S. Court of Appeals for the 6th Circuit and a former state solicitor for Ohio who argued for state interests before the U.S. Supreme Court; Delaware Supreme Court Justice Randy Holland, past president of the American Inns of Court Foundation; Stephen McAllister, professor at the University of Kansas School of Law, former clerk to Justices Byron White and Clarence Thomas and current state solicitor of Kansas; and Jeffrey Shaman, professor at DePaul University College of Law in Chicago. The four answered questions from The National Law Journal’s Supreme Court Correspondent Tony Mauro. The discussion has been edited for length and clarity.
Tony Mauro: The challenge to California’s Proposition 8 banning same-sex marriage is making its way to the U.S. Supreme Court. This can be seen as a clash between state and federal constitutions. What are your thoughts on this litigation?
Stephen McAllister: It is an aggressive strategy. A victory all the way to the U.S. Supreme Court will be a huge advance for the proponents of same-sex marriage, but if the Court rejects the federal claims, that could be a significant setback in a context where some state supreme courts had begun to recognize such rights under state law, and public opinion seems to be evolving over time to favor and/or tolerate such marriages. I suspect that this issue may be moot in a generation anyway, assuming societal attitudes continue to trend as they have the past several years. But a political or state-by-state solution may have been just as effective, or perhaps even more effective, than an aggressive attempt to get the Supreme Court to declare bans on same-sex marriage unconstitutional at this point in time. One certainly might suggest parallels between this situation and Roe v. Wade[, 410 U.S. 113 (1973),] and its subsequent history.
Furthermore, even if the Supreme Court recognizes some sort of federal right to same-sex marriage, that recognition might not be as vigorous or extensive as might be the case in at least some state courts because, again, Supreme Court decisions are binding on the entire country, which sometimes leads the Supreme Court to take baby steps rather than great leaps.
Jeffrey Shaman: Even if the U.S. Supreme Court upholds Proposition 8, each state is free to decide the issue for itself under its own state constitution. Thus, the states that have recognized a state constitutional right to same-sex marriage would not be affected by a Supreme Court ruling.
Mauro: In challenging the new federal health care law, several states have passed laws and constitutional amendments aimed at thwarting aspects of the new program, such as Virginia’s law protecting the right of residents to refuse health insurance. How do you see this state-federalclash playing out in coming months?
McAllister: These laws — Missouri just passed a state constitutional amendment by referendum in early August — strike me as having zero legal effect, because of the Supremacy Clause. The real question is whether Congress has the Article I power to enact the health care reform law: If it did, these state objections will be pre-empted; if it did not, then these state objections are not necessary in any event.
That said, the ease with which state constitutions can be amended does provide a means for democratic expression of public opinion in a way that is not available under the U.S. Constitution, and such measures may well influence the politics and public debate on topics such as health care reform.
Mauro: What is the relationship between the federal and state constitutions, and why is state constitutional law important?
Shaman: Sovereign in their own right, the states have authority to adopt their own constitutions and to interpret them as they see fit, independent of federal constitutional law. Thus, many states have interpreted their constitutions to recognize rights beyond those recognized under the federal constitution.
At times, there is a give and take between state and federal courts. For example, in 1986 the U.S. Supreme Court decided Bowers v. Hardwick, [478 U.S. 186,] upholding the constitutionality of a criminal statute prohibiting sodomy and ruling that the federal Constitution did not protect the right of an individual to engage in consensual homosexual activity. After Bowers, five state courts rejected both the reasoning and result of Bowers in ruling that criminal laws prohibiting consensual homosexual activity violated state constitutional provisions protecting the right of privacy. Finally, in 2003 the U.S. Supreme Court decided Lawrence v. Texas, [539 U.S. 558,] overruling its previous decision in Bowers v. Hardwick. The five state court decisions rejecting Bowers were cited in Lawrence and apparently played some part in convincing the Supreme Court to overrule Bowers.
Jeffrey Sutton: Virtually all of the first eight amendments to the Bill of Rights came from the early state constitutions. What those provisions mean is highly relevant to the citizens of each state in a legal system that permits dual claims of unconstitutionality. It also is relevant to federal judges tasked with determining what their federal counterparts mean, whether those judges favor originalist, living-constituitionalist or pragmatic methods of interpretation, or some combination of the three.
McAllister: Obviously, by virtue of the Supremacy Clause of the U.S. Constitution, any conflicts are resolved in favor of federal power and against state constitutions. But the Supreme Court is, by nature, often likely to be more conservative in its approach to interpreting the U.S. Constitution because its decisions will create rules binding on the entire country. Also, several Supreme Court opinions have made clear that the U.S. Constitution only creates a floor of individual rights, not a ceiling, so that state supreme courts are free under their own state constitutions to recognize greater rights of privacy, free speech and protections against police abuses, for example.
Furthermore, many state constitutions have provisions that simply have no counterpart in the U.S. Constitution — e.g., right to privacy provisions or remedy by due course of law/open courts provisions — and thus create the possibility of state courts more readily recognizing rights that the Supreme Court may be reluctant to recognize.
Finally, state constitutions generally are much more easily amended than the U.S. Constitution, and thus state constitutions are more democratic than the U.S. Constitution and more responsive to changes in society than is probably true of the U.S. Constitution, for better or for worse.
Randy Holland: The federal constitution is one of enumerated powers. Any power not given to the federal government by the states is reserved to the states in the 10th Amendment. State constitutions are the means by which states exercise their residual sovereignty. They operate as structures of government and sources of individual rights that can be greater rights, never lesser, than are afforded by the United States Constitution.
Mauro: Why did you write the casebook? What is the gap you hope to fill?
Shaman: In a number of areas, state constitutional law is on the cutting edge, leading the way to new rights and liberties. Same-sex marriage is the most obvious example, but in a number of other areas, such as gender discrimination, the right of privacy, school funding, tort reform and criminal procedure, state constitutional law is leading the way. State constitutionalism is vibrant, exciting and responsive to the demands of contemporary society.
Sutton: It has always seemed strange to me that all law schools teach federal constitutional law but never teach the other half of the story — state constitutional law — a topic that is much in the news these days, that is vital to understanding all constitutional limits placed on state and local governments and that only lawyers specializing in being half-equipped to solve their clients’ problems can safely ignore. The course was not offered at my law school, Ohio State University, in the late 1980s, but Richard Cordray, the current Ohio attorney general and the state’s first solicitor general, started teaching the course at OSU in the early to mid-1990s. We taught the course together for a while, and I have now been teaching it for about 12 years.
Mauro: The Conference of Chief Justices in February passed a resolution urging law schools to offer courses on state constitutional law. Why do you think this is important?
Holland: It tells law schools that this is an important subject to teach to law students. State supreme court chief justices know that state constitutional arguments are frequently not raised and, when such claims are made, the presentations are not strong.
Sutton: While courts can perform effectively when the advocacy is average, the odds increase that they will perform effectively when the advocacy is excellent. I suspect that the state courts hope that, if more schools offer the course, more students will take it and more of them — when they become lawyers — will be able to present thoughtful arguments about the meaning of their state constitutions.
Shaman: There is a growing recognition that our constitutional system is a federal system that includes both federal and state constitutional law. It is important for students to study both sides of the federal constitutional equation to adequately understand constitutional law. And constitutional lawyers need to see both sides of the constitutional law to adequately represent their clients.
Mauro: It would seem obvious that state bar exams would test prospective lawyers on state constitutional knowledge, but I gather many bar exams don’t touch the subject. Is that your perception, and why do you think it is true?
Holland: Many states don’t have state constitutional law on their bar exam because the subject is too comprehensive. The bar exam tests for minimal competence and there is a feeling that this special area of the law can be learned after admission. Those attitudes are changing slowly.
Sutton: I don’t know. But it does seem useful to ask why lawyers must take an oath to support the state and federal constitutions, why a lawyer must know federal constitutional law to pass each state’s bar and yet why lawyers need not know anything about state constitutional law to pass most states’ bar exams.
McAllister: It appears that the vast majority of states do not test state constitutional law on their bar exams. That may be in part because of a perception that state courts typically follow federal constitutional law (e.g., on Fourth Amendment and criminal procedure questions) or that state constitutions have little independent vitality. In any event, the failure of law schools to teach state constitutional law is likely correlated strongly with the absence of the topic on state bar exams.
Shaman: For some years, federal constitutional law overshadowed state constitutional law. That has been steadily changing, however, and in many areas state constitutional law has come to the forefront. The bar exams are lagging behind by not addressing state constitutionalism.
Mauro: In the book, you state that many lawyers are unaware, when they are challenging a state or local action, that they have two choices: basing the challenge on the federal or state constitution. Can you elaborate on that? Aren’t there areas where, if there is an “adequate and independent” state ground on which to uphold a law, the federal courts won’t get involved?
Holland: It is true that any decision based on an independent and adequate state ground will not be reviewed by a federal court unless it is alleged that the state ground violates the United States Constitution. For example, an allegation that a state ban on same-sex marriage violates the federal equal protection clause.
Sutton: The “adequate and independent” state ground considerations are exactly why some litigants raise federal and state claims in the state courts and hope that, if they win on the state law ground, the state court will say so plainly, precluding the U.S. Supreme Court from reviewing the issue.
McAllister: A good lawyer may well prefer to have a state court decide the issue on a state constitutional basis — leaving no appeal available to the Supreme Court — rather than to win on a federal ground that may be more difficult to defend either in the federal courts generally or on appeal to the Supreme Court. Also, it may be easier in some cases to persuade a state supreme court to recognize a right or create a rule that only applies in that state than to convince lower courts, and ultimately the Supreme Court, that the U.S. Constitution creates the right or rule at issue.
Shaman: It is correct that, if there is an adequate and independent state ground on which to uphold a law, the U.S. Supreme Court will not review the case. This is all the more reason why state constitutional law is important because, in some areas, federal constitutional law will be precluded, leaving state constitutional law the sole law that is applicable.
Mauro: The Rehnquist Court seemed quite interested in strengthening the power of states in the federal-state federalism balance. The trend seems to have lost steam in Rehnquist’s final years and in the Roberts Court. What do you think is the current state of federalism and of state constitutions in comparison to the U.S. Constitution?
Shaman: The other side of the federalism coin is that many states have taken up the invitation of the Rehnquist Court to enhance their sovereign rights. There has been a rise of federalism on the state side, manifest in the expansion of state constitutionalism.
McAllister: I don’t think the Roberts Court is as interested in federalism or in state prerogatives, but at the same time I am not sure the Roberts Court is interested in recognizing many new individual rights, or expanding most individual rights currently recognized, except maybe Second Amendment rights. That means that, if the Supreme Court is conservative regarding the Bill of Rights, that will leave open the possibility that some state supreme courts may recognize state constitutional rights where federal rights have not been found to exist. So there is a dynamic role for state courts and state constitutions to play.
Tony Mauro can be contacted at firstname.lastname@example.org.