Symposium Response: Mountaineering Guides, River Crossers & Keen-Eyed Snorkelers Part I

Updated: 3 days ago

In the preface to Who Decides?, I acknowledge “the considerable scholarship already undertaken” with respect to the structure of our 51 constitutions and my grateful reliance on their work. “Dependable guides all,” I point out, “they have suggested which mountains to climb, which rivers to cross, what parts of the journey to leave to others.” The new state and local government blog has brought many of these guides together to comment on some of the themes in Who Decides?

Thank you.

Some 245 years after our founding, America now has a blog devoted to the one type of law that affects us every day (state and local government law) and the place most likely to generate stable and long-lasting change (state and local governments). Law professors, students, and practitioners alike should be grateful to the founders of the blog for taking the initiative to launch it, and I am especially grateful to Dan Rodriguez and Miriam Seifter for organizing this symposium. Suitably bookmarked, the blog gets a fresh look from me every day. I look forward to celebrating each anniversary of its existence and perhaps contributing posts of my own.

It is an honor to engage true scholars on the ever-more salient topic of American constitutional structure, the many who-decides questions that go with it, and the ways in which variety and variation could help our country navigate pressing, if not unique, political and civic challenges. In responding to these generous and thought-inducing posts, let me start with the writings of two state constitutional law professors, one seasoned, one new to the game.

Robert Williams has been teaching state constitutional law for decades. One could imagine a Rutgers faculty meeting years ago, in which a waggish colleague asked Williams how much longer he, Ahab-like, would continue to try to spread the wisdom of teaching, and studying, state constitutional law. Progress did not come quickly. Few law schools offered the course at the time, and one has to wonder how many law professors in the country, if any, obtained tenure in those years based on a commitment to scholarship devoted to state constitutional law. How fortunate we are that Bob Williams stuck with it—that he, political scientist Alan Tarr, and others continued to devote their talents to what for so long has been an underappreciated field.

Williams’ post focuses on the separation-of-powers issues brought to the surface by the changing fortunes of American state legislatures since the founding. “If balance of power in American government could be reduced to a score card, it would show state legislatures in the pole position at the outset.” (Who Decides? at 233). Yet “much of American constitutional history can be described as the loss of state legislative power to the other state and federal branches.” (234). One way in which the American people recalibrated power, as Williams explains, was to amend their state constitutions to place a host of process-based limitations on their state legislatures—sometimes in response to corrupt legislative actions, such as the Yazoo land fraud in Georgia. I enjoyed learning that Williams’ first inklings that state constitutions deserved attention arose in the same way mine did—by litigating process-based limitations on state legislatures, such as single-subject clauses, uniformity clauses, public-use clauses, and the like. The only apparent difference is that Williams won his cases while representing the plaintiffs, and I lost a lot of mine while defending the State of Ohio. All of which shows that these clauses have teeth. The claimants have won a lot of these challenges with respect to a lot of high-profile laws. Over time our frequently amended state constitutions have imposed many procedural limitations on state legislatures that appear nowhere in the U.S. Constitution, and these limits have played consequential roles in what state legislatures may and may not do.

Nicole Garnett’s journey to teaching state constitutional law at Notre Dame shows why there is room for optimism about the future of state constitutional law. As she says and as I can attest, the “class is a blast to teach” and “the students love it”—even, as I have seen, in the two-dimensional setting of a Zoom class. That is saying something.

What is so appealing about teaching the subject and studying it? For one, most law students, like most Americans, tend to know little about state constitutional law at the outset. That makes it easy in nearly every class to discuss something new and salient—that most state and local laws, say, are subject to two, rather than just one, constitutional challenge given the possibility of invoking the federal and state charters. That’s a new point for most students. And it’s a material point for students concerned that the U.S. Supreme Court may innovate fewer rights in the future and for students eager to find innovative ways to help their future clients. For another, state constitutional law offers not just a second chance to win on behalf of a client but a second chance to get the doctrine right. By the second or third year of law school, many students have come to appreciate something many professors already think—that there are areas of federal law in which there is room for improvement and areas of federal law in which there is another reasonable way to think about it. Where that mindset prevails, state constitutional law gives students an avenue for improving things. The State of Ohio Supreme Court need not follow this or that U.S. Supreme Court precedent or this or that Sixth Circuit precedent. The future lawyer may argue that Judge Sutton’s opinion, sad to acknowledge, is demonstrably wrong—and the state courts should not repeat the mistake. What fun for some. How liberating for all.

Garnett makes the case that, as between constitutional structure and constitutional individual rights, structure is the more essential—where, as she says, “the true constitutional innovations happen.” Agreed. She illustrates the point by talking about state administrative law. When it comes to structure, a two-shot opportunity does not arise. The state constitutions apply only to the relevant state governments, and the federal structural imperatives rarely limit state governments. But that does not remove the possibility of importing and exporting insights, of using the state systems as trial-and-error models for improving system design in other States or for the United States. The state models, as it happens, have not shied away from enforcing the non-delegation doctrine, and they rarely embrace Chevron-like models of deference to state administrative agencies, both in marked contrast to the federal courts. There is a lot to learn from these experiences for everyone, no matter their preferred school of interpretation. For the pragmatist, these experiences show alternatives that work and that the sky is unlikely to fall if the federal courts tinker with periodic enforcement of the non-delegation doctrine or with reconfiguring judicial deference to agency interpretations of law. For the living constitutionalist, the state models show what the American people seem to want—that at least 40 States do not follow federal administrative law in these two areas. For the originalist, the state constitutions and their history offer potential evidence that the federal model has crossed the bar from its native port.