Especially after Dobbs v. Jackson Women’s Health Organization, there has been more public attention given to state constitutions. In reality, state constitutions have always been important. But for most of the twentieth century, legal scholars and attorneys focused almost exclusively on the federal Constitution. Therefore, for most of us serving as judges in the United States, our “constitutional law” courses addressed only the federal Constitution and our law schools did not offer courses in state constitutional law. As pointed out by Sixth Circuit Chief Judge Jeff Sutton, even as of 2016, only 28 law schools (of around 200) offered a course in state constitutional law, while another 25 offered only courses specific to the constitution of their situs states.
It is time for state constitutions to be given the attention they deserve. Judge Sutton compares the failure of attorneys to raise state constitutional law issues to not taking the second free throw that could win a basketball game. (As a former college basketball player, this analogy resonates!) As a judge for over 30 years, I’ve considered myself a “malpractice avoidance” judge; I’d rather have cases decided on the merits. So, as a trial judge, when attorneys raised a federal constitutional question and did not argue the state constitutional analogue, I asked them if they also were arguing the state constitution. But I know not all judges do that or feel comfortable doing that.
Therefore, I propose that we judges take a more active role in elevating awareness and advocacy of state constitutional law issues. I’ll get into specifics later. But first, some historical and legal background.
In early U.S. history, state constitutions played an important role within the U.S. constitutional structure. Eminent state constitutional law scholar Robert F. Williams explains that many features of the U.S. Constitution were modeled on earlier state constitutions. Judge Sutton’s book provides this wonderful quote from historian Gordon Wood: “The office of our governors [unitary executive], the bicameral legislatures, tripartite separation of powers, bills of rights, and the unique use of constitutional conventions were all born during the state constitution-making period between 1775 and the early 1780s, well before the federal constitution of 1787 was created.” Judge Sutton also points out that language underlying the 1791 Bill of Rights, the 1865 Thirteenth Amendment, the 1868 Fourteenth Amendment, and the 1920 Nineteenth Amendment all originated in state constitutions. Additionally, well before Marbury v. Madison, state courts applied state constitutions in exercising the power of judicial review. I didn’t know these facts when I was a trial judge.
In our earlier history, state constitutions reigned supreme for another reason. In its 1833 Barron v. Baltimore opinion, the U.S. Supreme Court ruled that individual rights provisions of the Bill of Rights did not apply to state and local government actions. Therefore, in the first 150 years of our country, with the exception of the Contracts Clause, only state constitutional provisions provided protection against state and local government action. As a result, most constitutional rights litigation took place in state courts and involved state constitutions. Judge Sutton points out that, accordingly, constitutional law treatises during these years mostly discussed state constitutional law.
What happened to cause a drastic change in focus from state to federal constitutions in the twentieth century? I’m sure there are various reasons, but one of the main ones has to be the adoption of the incorporation doctrine: the Court’s selective incorporation of various provisions of the Bill of Rights, making them applicable to state and local government actions through the Due Process Clause of the Fourteenth Amendment. This began in 1925 in Gitlow v. New York with the First Amendment right to freedom of speech and may still be continuing with 2020’s Ramos v. Louisiana
This began in 1925 in Gitlow v. New York15 with the First Amendment right to freedom of speech and may still be continuing with 2020’s Ramos v. Louisiana, which incorporated the Sixth Amendment–based requirement of a unanimous jury for a criminal conviction.
which incorporated the Sixth Amendment–based requirement of a unanimous jury for a criminal conviction. Incorporation elevated the importance of the federal Constitution in the twentieth century because the Court’s interpretations of federal rights generally provided greater rights than provided by state courts interpreting state constitutions, especially during the liberal Warren Court.
This focus on federal constitutional rights began changing, however, in the latter part of the twentieth century. Associate Justice Willliam J. Brennan Jr.’s 1977 article in the Harvard Law Review is considered an important trigger leading to a reemerging focus on state constitutions. Justice Brennan had served as a New Jersey trial court judge, appellate court judge, and apex court justice before his appointment to the Court, and he had been active in interpreting the New Jersey constitution. He became concerned about the conservative trend of the Court in the 1970s and urged state court judges and attorneys to not engage in “lockstep” interpretations of counterpart state constitutional provisions that mirror provisions within the Bill of Rights. He pointed out that “decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law.”
Justice Brennan lauded state courts that declined to simply adopt the Court’s interpretations of federal constitutional provisions when interpreting analogous state constitutional provisions. He cited an opinion of the Hawai'i Supreme Court that said, “while this results in a divergence of meaning between words which are the same in both federal and state constitutions, the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law. . . .” (I digress here to note that federalism also allows a state court to interpret a state constitutional provision as providing less protection than that provided by the federal Constitution; of course, the “floor” of the federal constitutional right must still be upheld.) Justice Brennan also lamented the failure of state court judges and attorneys to advocate for independent interpretations of counterpart state constitutional provisions.
This influential article kickstarted what is often referred to as the “new judicial federalism,” or “state constitutionalism,” and state courts increasingly began moving away from the “lockstep” approach of interpreting state constitutional analogs in the same way the Court interprets the federal constitution. Some states (including Hawai'i) went beyond the “interstitial” approach of addressing the state constitution after addressing the federal Constitution and adopted the “primacy” approach advocated by former Justice Hans Linde of Oregon—that of first interpreting the state constitution. And state constitutionalism was strongly buttressed by the Court’s 1983 opinion in Michigan v. Long, which held that state court decisions based on separate, adequate, and independent state law grounds will not be subject to review by the Court.
An example of independent state law grounds not subject to Court review were the state court opinions recognizing constitutional rights of same-sex couples based on state constitutional
An example of independent state law grounds not subject to Court review were the state court opinions recognizing constitutional rights of same-sex couples based on state constitutional provisions.
First came the Hawai'i Supreme Court’s 1993 opinion in Baehr v. Lewin—the first high court opinion in the world to hold that denial of same-sex marriage implicated constitutional rights. The original plurality opinion was written by then Associate Justice Steven Levinson and joined by then Chief Justice Ronald Moon. The plurality ruled that a statute restricting marriage to opposite-sex couples violated the plain language of Article I, Section 5 of the Constitution of the State of Hawai'i, which provides, “[n]o person shall . . . be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry[,]” as the statute sanctioned discrimination against a person in the exercise of civil rights on the basis of sex. Three weeks later, Associate Justice Paula Nakayama replaced a retired substitute justice and joined the plurality opinion through an order clarifying the original opinion. After Baehr came other state apex court opinions favorable to same-sex couples. These decisions clearly raised awareness of the importance of state constitutions.
Another feature of state constitutions also has led to the reemerging focus on them: “positive” rights that appear only in state constitutions and have no federal constitutional counterpart. These include rights to education, workers’ and social welfare rights, and environmental rights. With respect to educational funding, Judge Sutton provides an overview of state court interpretations of state constitutional provisions after the Court’s opinion in San Antonio Independent School District v. Rodriguez, which held that education is not a fundamental right subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. More recently, state constitutional provisions on environmental rights are receiving increased attention. And there are cases based on state constitutional rights concerning other topics, including gerrymandering, abortion, and takings of property.
But despite the increased awareness of the importance of state constitutionalism, there are still cases in which lawyers only raise federal constitutional issues without raising the state constitutional analogue or other possibly applicable rights in state constitutions. In other words, there are cases being litigated without consideration of state constitutional provisions that could actually dictate an outcome without further Court review, based on Michigan v. Long.
What can we judges do to ensure that potentially dispositive state constitutional provisions are considered? I haven’t researched other states’ approaches, but in Hawai'i, we recently adopted an appellate rule allowing us to notice plain error but provide an opportunity for supplemental briefing. This type of rule allows judges to raise a state constitutional issue if the attorneys haven’t done so.
But what we really want is for attorneys to independently consider state constitutional issues and appropriately argue them to us, which could include researching the historical intent of the provision, the voters’ intent, how other states may be interpreting similar provisions, and why the state provision should be interpreted in the manner proposed. Yet, until all law schools require students to study state constitutional law, we’ll have attorneys, like us, who were not necessarily taught the importance of and how to argue state constitutional law issues.
Therefore, we need to advocate for law schools to teach state constitutional law. We can and should include this issue in our talks and conversations. Unfortunately, suggesting a course isn’t always enough. As mentioned earlier, although it appears the numbers are growing, there aren’t many scholars specializing in state constitutional law. And despite our state’s relatively rich history of state constitutionalism, no course in state constitutional law was offered at our only law school until the spring 2024 semester—and then only when my colleague Justice Todd Eddins and I offered to co-teach the course. I am not a scholar of state constitutional law; I am a generalist. But I realized that unless we offered to do so, no one was going to teach the course. I do look forward to the day when a full-time faculty member teaches the course and contributes to the scholarship on state constitutional law issues.
Hence, if you are unable to persuade your area law schools to offer a course in state constitutional law, it might be something you have to consider doing yourself. If you do, please feel free to reach out. There are others who also are willing to provide us with guidance.
Short of teaching an actual law school course, it is important for judges to educate lawyers, law students, and other students, as well as the entire community, on the importance of state constitutions. I’ve given many talks and PowerPoint presentations to judges, lawyers, law students, other students, and community members regarding state constitutions, and I mention state constitutions whenever appropriately possible. I’m sure many of you are doing so as well. If not, however, please consider making this one of your topics, no matter who your audience is.
Together, let’s continue learning, teaching, and applying state constitutional law to get to justice.
