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

Updated: Jan 25, 2022

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.

State constitutional law is a rich comparative course, in truth a class on American constitutional law. It toggles back and forth between the guarantees the students know (federal constitutional law) and the source of those guarantees in all of their variation (the early state constitutions). Teaching state constitutional law without mentioning federal constitutional law is a bit like teaching English without permitting the student to use the alphabet. And teaching federal constitutional law without mentioning the state constitutions is a bit like pretending the development of the alphabet came out of nowhere and had no story of its own.

Leave it to the author of Looking for Rights in All the Wrong Places to come up with a new way of thinking about state constitutional law. Emily Zackin describes state constitutionalists as snorkelers, more interested in exploring the sub-surface splendor of American constitutionalism than the everyday features of its surface. “Onboard the boat,” she observes, “the wind, the clouds, the movement under my feet, my uncertainty about our course and the changeable weather dominate my awareness. Of course, I know that there is something under the water, but it is still astonishing to be confronted with the view and with the realization that all of us on the boat have been missing almost all of the action. Undetected, and right beneath us, was a huge amount of structure and activity, an entire realm that had escaped our attention.” Bravo.

So many of the currents of American constitutional law, as Zackin recognizes, appear first in the state constitutions, either because they were the first American constitutions in the fledgling decade after independence or because they offer the best evidence of what Americans have wanted ever since, given the ease of amending them. Not only have state constitutions set the stage for later federal constitutional amendments that create a uniform national rule, they also leave the possibility of variety as a useful value in and by itself. Federalism generates uniformity in some areas and permits variation in others. At either time, as Zackin puts it, there is a “larger benefit of federalism” for a country full of diverse views about the meaning of the American way: “it ensures that neither side loses too completely.”

Even in our age, in which few first principles remain untouchable, all Americans still seem to embrace Justice Brandeis’s insight that federalism permits “a single courageous State” to “try novel social and economic experiments without risk to the rest of the country.” New State Ice v. Liebmann, 285 U.S 262, 311 (1932) (Brandeis, J., dissenting). In embracing this virtue of American federalism, Brandeis looked to state legislatures as the source of these trial-and-error initiatives. That approach might work equally well for another branch of government: the courts. It might facilitate efforts to handle “the distinctly American phenomenon of identifying new judicially enforceable rights.” (p. 14). So long as we stay on the path of using the federal courts to innovate new rights, we may wish to treat state courts, interpreting state constitutions, as the experimenters in chief when it comes to identifying new judicially enforceable rights, whether because they establish proof that nationalization is a good idea or proof that variation should be tailored to local variety.

Zackin’s post ends with a discussion of local elections that implicates the key theme of Kate Shaw’s thoughtful piece, “Who Defends,” which explores the challenges of the plural executive at the state level. State governments are Jacksonian through and through. In marked contrast to the single-headed executive at the federal level, they allow independent elections for all kinds of executive-branch officials—everything from attorneys general to secretaries of state to directors of insurance to superintendents of education. And lots more besides. At the federal level, presidents generally do not share power with other executive-branch officials. In nearly every State, governors share that power with many separately elected officials, sometimes from different political parties. This state-level reality creates all kinds of opportunities for more democratic input, variation, and conflict.

But today’s risk is that “variation” may not be “possible in the present” (Zackin) because local politics too often has come to look like national politics at this “perilous moment for American democracy” (Shaw). Tip O’Neill’s observation, Zackin and Shaw both seem to worry, may no longer be true—that “all politics is local.” I appreciate the point. Consistent with it, I raise the question in a chapter on the executive branch whether separately elected attorneys general in the States have come to take positions that reflect 50 state perspectives, as opposed to two national political party perspectives. When and whether state attorneys general should cede state authority—whether to national legislatures, presidents, or courts—is a complex inquiry. Shaw and I agree that, generally speaking, there is “no state-law obstacle to their doing so.” What does not seem complex is the observation that having fixed blue and red positions, traceable only to the agendas of two national political parties, destroys a virtue of federalism—true experimentation involving, as Brandeis puts it, lots of “single, courageous” States. (More to come in Part II.)


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