Updated: Jan 25
In my second year of teaching at Berkeley, I approached an esteemed senior colleague and asked him for his thoughts about my plan to teach a course on state and local government law in the next academic year. He gently but firmly counselled me to wait until after tenure to implement this good scheme. “We are a national law school,” he declared, “and you wouldn’t want your colleagues to think that your ambition would in any way be tempered by a focus on local law.” I took his advice, and waited until after tenure. Though my plan was postponed, I embarked on a course on local government law and, later, state constitutional law, with enthusiasm.
As to the latter in particular, I never thought myself as ahead of my time, but I suppose I was. Aside from a few leading lights writing and teaching tirelessly in this area, including Robert Williams, who has contributed to this symposium, the bench of scholars who are deeply invested in the field of state constitutional law is not a deep one. The lectures and symposia have steadily continued (as I can testify first hand) but the instantiation of state constitutional law in the law school core has been slow going – shall we say it has been a “slog?!” 😊
And so in addition to the tremendous insights and scholar rigor revealed in Judge Jeff Sutton’s two books on state constitutional law, we should acknowledge the evangelism at the heart and soul of this important body of work. Judge Sutton is a missionary for the expansion of state constitutional law in the public law curriculum of U.S. law schools. He wants us to offer foundational and specialized courses in this area, encourage strongly our students to take these courses, supervise student research in pertinent topics, and hire faculty whose specialty areas include state constitutional law. All worthy and even hubristic ideas! But even more, Judge Sutton encourages his colleagues who teach the foundational public courses in American constitutional law, administrative law, legislation, and perhaps even federal courts, to devote serious attention to state constitutional adjudication, legislation, and administration. Such ambitions are the stuff of comprehensive legal education reform. So please let us tip our hats to Jeff Sutton, the radical reformer!
What the realization of this vision would provide for our students, in addition to a tour through major areas of law and policy that are so very critical to modern democracy, is the opportunity to look at important legal puzzles through the widest possible lens and therefore to furnish students with skills that will help them become not only able lawyers but far-sighted policy reformers.
Take just one example: In the area of educational adequacy and equity we face the challenge of a limited national framework for constructing policy that would move the needle. San Antonio v. Rodriguez has narrowed the chances of intervention under the rubric of the 14th amendment’s equal protection clause; and no other meaningful positive right to an adequate education appears plausible, at least elsewhere from a progressive law professor’s wishful thinking. Federal legislation to implement national policy is, too, limited, this by virtue of the limited compass of the commerce power and other authorities to act. Thus we have typically looked to state constitutions to create the structural conditions for legislative responsibilities and judicial interventions. However, as Judge Sutton and others have noted, it is the confluence of national, state, and even local objectives and strategies that configure the architecture of public education in the United States. The U.S. Constitution imposes certain limits on educational strategies (think of affirmative action jurisprudence); state constitutions limit certain actions by local authorities, including school boards (think of busing); and the intergovernmental wheels keep turning. All of this is to say that that a coherent account of the big matter of educational adequacy and equity requires a firm grasp of state and national issues, looking both at the U.S. Constitution and its interpretation by the federal courts and also at state constitutions (in their particular and their general).
Other examples abound, including land use policy and eminent domain, public health policy, and one of my favorite examples of late – cannabis federalism. In each of these areas, we should heed Judge Sutton’s wise exhortations to all of us in the legal academy to broaden and deepen our students’ exposure to state constitutional law and, as well, to draw in state constitutional themes when we explore key questions that to general public law in the United States. What Judge Sutton has given us with his significant and continuing work in state constitutional law is a template for rethinking the boundaries of public law in legal education. Let us get to work!