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Thursday, April 09, 2009

Comparative Con Law v. State Con Law

Professor Paul Horwitz's illuminating post on Prawfs Blog yesterday entitled "Of Canapes and Comparativism" struck me as exactly right in arguing that the perceived lack of prestige in doing state constitutional law work is one reason the field lags behind the trend favoring global comparative constitutional law.  I do want to respectfully question his suggestion or implication that state constitutional law is more likely to provide useful knowledge for the future lawyers we educate ("those young lawyers...will surely be exposed to comparative state law issues.").  I have a unique perspective on this as I taught state constitutional law focusing on Montana for several years (at Univ. Montana Law School), but have done most of my work in the global comparative area since coming to Drake.  I actually think the global comparative field provides more educational benefits to most of our students in the long run.

As Paul acknowledges "even though comparative constitutionalism may provide greater contrasts and interesting data, surely we get some value from comparative state constitutionalism, especially in these days of same sex marriage litigation." He's right that there's great value in studying state con law.  Yet the profound "contrasts" revealed in the global context are invaluable.  Among the standard justifications for studying global comparative constitutional law is that one gains a better understanding about the underlying, non-obvious assumptions, of American constitutionalism.  This in turn allows one to be more critical regarding certain arguments made by American courts.  State constitutional law, in my view, simply does not challenge these assumptions so clearly and thus does not deepen student understandings of their own system, or foreign systems, to the same extent.  Indeed, many states often follow federal precedents in interpreting analogous clauses in their constitutions.  And those states, like Montana, that do something different (say on rights questions) still make fundamentally American assumptions about constitutional law, the role of courts, having an underlying common law system, etc.


Actually, the biggest difference I saw between state and federal constitutional law was that state budget and financial provisions were far more constraining (and detailed).  Balanced budgets are often required.  But this is hardly a novel concept to American law students who follow debates in the newspapers all the time about this issue.  Indeed I believe that our graduating students don't generally have great difficulty learning state con law for the bar or learning about the legal issues there in practice, even if they didn't take a law school course on the topic.  But what is dramatically different is learning how, for example, the South African Constitutional Court has ruled that socio-economic rights are judicially enforceable, and then seeing how that Court develops a comprehensive jurisprudence implementing such rights without endangering separation of powers and without exhausting state resources (I will discuss this in future posts as our U.S. Supreme Court has essentially said courts lack competence here).  Students are also exposed to the differences between parliamentary and presidential systems, American standing doctrine vs. abstract review, etc. 

In sum, I think students can experience close to a "paradigm shift" in their view of how constitutional law works in a global course (I couldn't figure out how to fit Karl Popper in here from the prior posts so readers will have to settle for Thomas Kuhn).  My views of American constitutional law shifted dramatically after spending a year in South Africa learning about their new constitution.  In addition, students learn about different cultures and histories, as well as about how those differences influence constitutions, courts, societies, and individuals.  This will serve them well as lawyers and citizens in being able to think more creatively, and in allowing them to analyze various problems with more cultural sensitivity in an increasingly diverse American society.  This is not to denigrate state constitutional law or to disagree with Paul on the need for more work (and cocktail parties) in the area.  Rutgers-Camden has a great state con law center, and scholars such as Alan Tarr (Rutgers), Robert Williams (Rugers), Jim Gardner (Buffalo), and Jim Rossi (FSU) do tremendously important work on such issues.  But even Rutgers has recently focused some of its activities on what is called "sub-national federalism" issues globally, after years of domestic focus.  

One somewhat connected critique might be that if global con law is so different, then doesn't that add to the argument against the U.S. Supreme Court citing to foreign constitutional law.  I don't think so.  The Court has in general cited to Western democracies.  How these nations address similar issues can be illuminating because they share certain basic values, but are also different enough to provide novel views. (Addendum:  I want to acknowledge Paul's Canadian heritage and add that he probably therefore knows more comparative con law than I do!  I also want to say that it was hard to write everything above without once referencing the word "globalization," but it was worth the try.)   

Posted by Mark kende on April 9, 2009 at 06:12 PM in Constitutional thoughts | Permalink


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I think the value in teaching state constitutional law to law students is that as lawyers they will better understand the unique law under their own states' constitutions (or at least how they don't follow the federal constitution). From my perspective as a former clerk on a state supreme court, the most infuriating thing in state constitutional law is the "lockstep" doctrine, where state courts will interpret their own constitutions to meant exactly what the federal courts say the federal constitution means.

My opinion is that this doctrine is usually the result of not an overarching ideology but sheer laziness. As a clerk I researched an issue under a clause in our state's constitution that had never been rulled on before in the state courts, but had under the very similar federal clause. Neither party briefed what the state clause meant in detail, and my justice and I merely borrowed from federal law and created a precedent that now largely mirrors federal law.

If any of these actors, the parties, any of the justices (there were no dissents or concurrences on the issue), my justice, or myself, had actually research the state clause, parsed its meaning textually (free from federal precedent), read the state's constitutional convention transcripts, or even looked and weighed policy reasons, the court might have "created" some more meaningful law.

Perhaps I or the justices should be faulted for not "sticking up" for their own constitution, but, as all practitioners know, courts are often only as good as the lawyers before them, and these particular lawyers obviously knew very little (or at least didn't chose to spread their knowledge to the court) about the state's constitution, at least in this area. Without that education to the court, state courts will not "innovate" with state constitutional law, or (if you're an originalist or textualist) enforce the very different contextual background, histories, and words, of state constitutions. If lawyers studied their state constitutions in law school I think opinions such as my justice's would be very much enriched. But, because few scholars chose to study, and few schools chose to teach, the subject there are a lot of lawyers walking around who don't think to look beyond federal law. This is a big problem.

Posted by: Former State Clerk | Apr 10, 2009 10:59:45 AM

Mark, great post. Thanks for expanding on the discussion. Incidentally, I'm not down on studying comparative constitutional law; as you note, given my mixed Canadian/US legal background, it's more or less part of my standard repertoire, and I think it's good for law students interested in constitutional law to have a sense of what's out there in the world. My real question was why we emphasize global comparative con law so much these days and whether the amount of attention given to that as opposed to state con law is justified given the marginal costs and benefits of each. On this point, while I think there's room for study of global comparative con law, I also think there's room for *more* attention to state con law, and that the reason we don't pay it as much attention has as much to do with material conditions as with careful calculation of the costs and benefits of each. Cheers, Paul

Posted by: Paul Horwitz | Apr 10, 2009 10:24:12 AM

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