Ball of Confusion (That’s What the World Is Today)

This issue’s theme is the importance of state constitutions; however, the 1970s song by the Temptations, “Ball of Confusion (That’s What the World Is Today),” may be a more timely and appropriate title for this issue. Articles in this issue attempt to make sense of the discrepancy between federal and state laws and show how state constitutions have been applied to uphold rights when federal law is lacking.

The issue begins with an excerpt from a 1980 article by Justice Herbert P. Wilkins of the Massachusetts Supreme Judicial Court that was originally published in the Suffolk University Law Review. This poignant article explores circumstances in which state supreme courts might rely on their own state constitutions to address fundamental rights beyond what the U.S. Supreme Court recognizes under the federal In 2011, Justice Wilkins updated his article to cover what was then 30 years of additional experience on the He observed that, at that time, “there were rumblings” that state constitutions were about to emerge as a greater source of individual rights and liberties. The articles that we present in this edition of The Judges’ Journal demonstrate that Justice Wilkins’s predictive skills were

Hawai‘i Supreme Court Justice Sabrina Shizue McKenna’s article, “The Importance of State Constitutions: Our Role in Preventing Malpractice and Getting to Justice,” proposes that every law school should mandate a course in state constitutional law. Currently, only a handful of law schools offer such a course. Justice McKenna’s recommendations are:

1. Teach state constitutional law at all law schools (even make it a mandatory course).
2. Educate attorneys, judges, and the public about the “positive” rights that appear only in state constitutions that have no federal constitutional counterpart. This includes the rights to education, workers’ and social welfare rights, and environmental rights.

Constitutional Law Professor Stephen J. Wermiel’s contribution is as surprising as it is informative. He recalls Justice William J. Brennan Jr.’s 1977 article in the Harvard Law Review, among the most cited of all time, in which Justice Brennan called on state supreme courts to look to their state constitutions to add to the protection of individual rights at a time when the Burger Court was rolling back certain civil rights and liberties. But the surprise is that the article is from a speech that Justice Brennan delivered to a less than fully conscious crowd at a Playboy resort in New Jersey. Please read this remarkable article for the details.

Nevada Supreme Court Justice Linda Marie Bell and attorney Kegan F. Nelson’s article on the how, the who, and the whom of federal election law examines (1) how to vote (including mail-in ballots), (2) who can vote, and (3) who you can vote for (ballot qualifications). In doing so, the authors ask the important question: Is state law the best route in expanding voting rights to end the ball of confusion?

Justice Scott L. Kafker currently sits on Justice Wilkins’s Massachusetts Supreme Judicial Court, and his contribution to this edition emphasizes what he terms “double protection of constitutional rights,” which is exactly what our federal constitutional system is designed to provide. He highlights that state judges are required to consider “double protection” when interpreting state constitutions, and that state court litigants must consider seeking relief under their state constitutions when they prepare their arguments before state courts.

Georgia Supreme Court Justice Carla Wong McMillian and Amanda B. Graham’s contribution to the issue is “The Right Against Self-Incrimination Under the Georgia and Federal Constitutions: A Microstudy in Federalism.” Under the Georgia state constitution, the right against self-incrimination has been interpreted more expansively to include affirmative acts, providing certain additional protections for criminal defendants. These subtle differences between state and federal constitutional provisions can have significant impacts on the outcomes of cases at the state level. Attorneys and judges must consider every state constitution, with its own text, history, and context. We are at the forefront of these often unresolved issues, creating the “Ball of Confusion.” Justice McMillian includes an analogy suggested by Judge Jeffrey Sutton of using the state constitution argument like the end of a basketball game, and it is successful to win the game at the last-second winning basket.

Perhaps the most fascinating article on state constitutions in this issue is Chief Justice Robert J. Torres’s article about the complete lack of a territorial constitution in Guam. After over 125 years as a U.S. territory, Guam is still governed by congressional legislation rather than the self-governance ensured by a territorial constitution.

Justice Paul D. Wilson notes the sanctimony of the jury trial that was first preserved in state constitutions. As chair of the ABA Commission on the American Jury, he highlights several of the recently revised Principles for Juries and Jury Trials, including those on implicit bias, peremptory challenges, and virtual jury selection and deliberations.

In his regular piece on technology and the courts, Judge Herbert B. Dixon Jr. provides some of the backstory on the development of guidance to judges and their chambers on the use of artificial intelligence (AI) in their work. Rather than do the easy thing—warn judges to avoid AI—the guidance offers 14 examples of where AI can be used to safely enhance and expand judicial efficiency.

The contribution to the issue by our ethics columnist Marla N. Greenstein considers one of the most remarkable movements in amending state constitutions, which occurred in the 1960s and ’70s: establishing independent commissions to enforce judicial ethics.