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Thursday, March 07, 2019

State Constitutional Law at Notre Dame

Last Friday, I enjoyed attending a symposium at Notre Dame Law School, hosted by our Journal of Law, Ethics & Public Policy, on state constitutional law.  The line-up was outstanding (it included our own Dan Rodriguez) and Judge Jeff Sutton gave a thoughtful, engaging, and well-attended keynote address.

I particularly appreciated (as did, I hope, my students) the event because I'm teaching this semester, for the first time, a seminar on State Constitutional Law.  (The Other Professor Garnett has taught it for several years at Notre Dame.)  We are using the casebook for which Judge Sutton is a co-editor, and also his recent book51 Imperfect Solutions:  States and the Making of American Constitutional Law.  

Probably, most Prawfsblawg readers are familiar with Justice Brennan's article on the subject and with the fact that in a number of "hot button" subject-matter areas (e.g., religious accommodations, the exclusionary rule, education funding, economic-development takings, disparate impact, etc.) state courts have interpreted their own constitutions differently -- that is, in a way that provides more protection for individual rights -- than the Supreme Court has interpreted analogous provisions of the Constitution of the United States.  In addition to "rights" issues, though, there are fascinating variations in terms of "structure", e.g., non-unitary executives, non-delegation, standing and advisory opinions, etc.  My sense is that the students find these points of comparison and contrast even more interesting than the rights one (perhaps because the rights variations seem to reflect the one-way-ratchet principle).

I'd love to have Dan weigh in, but one question that has recurred again and again, for me, this semester is whether / when state courts are actually interpreting their own constitutions, as opposed to using the raw facts of federalism, Michigan v. Long, and the Supremacy Clause to dissent from / push back against Supreme Court decisions with which they disagree.  That is, are we seeing the interpretations of state constitutions themselves, or are they just vehicles, in some cases, for incorporating by reference various Supreme Court justices' dissenting opinions?

Another intriguing (to me!) question:  Judge Sutton insisted that "the federal floor is a myth."  That is, he said, it is not really the case that state courts must interpret their rights-related provisions as guaranteeing at least as much protection as do the analogous federal provisions.  True, if the federal claim is raised, its protections will win out but, he insisted, whether the federal claim is raised or not, a state court could still insist (imagine, for example, that a state court determined that its own constitution's free-speech clause does not protect pornography or campaign contributions) that its own rights-related provision provides, by itself, "less" protection.  So . . . why would/should a state court do such a thing? 

In any event, if anyone's looking to pick up a new course -- and I know that Sandy Levinson and others have been urging it! -- I recommend this one!    

Posted by Rick Garnett on March 7, 2019 at 03:10 PM in Rick Garnett | Permalink


To test the push back theory one could compare the approaches to state constitutional interpretation by the same justices in cases where there are (e.g., equality rights) and are not (e.g.,crime victim rights) comparable federal and state provisions. BTW, should we introduce comparative state constitutional provisions in other courses, like civil procedure where "structure" variations(e.g., court creation and s-m jurisdiction and jury trial requisites)are rampant and where some "rights" variations (e.g.,private discrimination in Illinois)are at times quite significant (e.g. civil rights commissions)?

Posted by: Jeffrey Parness | Mar 7, 2019 4:06:53 PM

Rick, sounds like a great symposium. I also wonder about the answer to your first question, which inspired this blog post: https://reason.com/volokh/2019/01/15/theories-of-state-constitutional-interpr

Posted by: Orin Kerr | Mar 7, 2019 3:54:48 PM

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