THE LAW OF AMERICAN STATE CONSTITUTIONS

Vol. 20 No. 8 (August, 2010) pp.388-390

THE LAW OF AMERICAN STATE CONSTITUTIONS, by Robert F. Williams. New York: Oxford University Press, 2009. 456pp. Cloth. $95.00/£60.00. ISBN: 9780195343083.

Reviewed by David Schultz, School of Business, Hamline University. Email: Dschultz [at] hamline.edu.

For most, American constitutional law means the United States Constitution. The study and teaching of constitutional law in American universities and law schools is focused almost exclusively on what the Supreme and lower federal courts do when it comes to the United States Constitution and the Bill of Rights. It is a focus on how the two form the supreme law of the land, defining the norm for adjudication, separation of powers, and the allocation of power and definition of rights afforded to individuals.

There is a different yet powerfully important realm of constitutional law generally ignored by scholars and teachers–state constitutional law. The discovery of state constitutional law can be attributed to at least two factors. First, until the 1970s, the federal courts, especially the Supreme Court under Chief Justice Earl Warren, took the lead or most constitutional decisions. But beginning in the 1970s state courts became new and active players in protecting individual rights and settling policy disputes. This occurred in part at the prompting of Justice Brennan who urged state courts to use their own constitutions and authority to protect individual rights. His 1977 law review article ushered in the “new judicial federalism” that encouraged state courts to use their own constitutions to resolve disputes. As a result, Hans Linde in Oregon and a handful of other state supreme courts justices began employing state constitutional arguments in their opinions.

The second major event was the battle for gay rights. Spurned by the United States Supreme Court in BOWERS v. HARWICK (1986), gay, lesbian, and transsexual advocates turned to the state courts for relief. While state courts in Kentucky in COMMONWEALTH v. WASSON (1992 ) reached decisions contrary to that of BOWERS, it was the Massachusetts GOODRIDGE v. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH DECISION (2003) that really focused many on the potential for using state constitutional law claims as alternatives to federal litigation.

Yet despite the new judicial federalism being over three decades old and GOODRIDGE near seven years, there is still little emphasis upon the teaching and study [*389] of state constitutional law. Sutton (2009) pointed out only 24 law schools and a few scholars (including this reviewer) offer any classes on state constitutional law, and it would not be remiss to contend that few graduate and undergraduate public law programs offer much on the subject beyond perhaps the empirical study of state supreme court adjudication that parallels similar work with the U.S. Supreme Court. The study of state constitutional law remains an ugly stepchild. The battle to bring state constitutional law to the mainstream seems to have fallen mainly to Rutgers University’s Center for State Constitutional Law Studies under Alan Tarr, a handful of scholars, and to Robert F. Williams, whose casebook STATE CONSTITUTIONAL LAW: CASES AND MATERIALS (4th ed. 2006) remains the sole text devoted to the subject.

THE LAW OF AMERICAN STATE CONSTITUTIONS is essentially Williams’ abridgement of his casebook. It omits the actual cases, focusing instead on the interpretative analysis of the decisions and articles excerpted in the main textbook. This volume provides an outstanding summary of the essentials of state constitutional law, drawing upon cases from across jurisdictions. The book provides a coherent exposition of what new judicial federalism means and it draws important parallels and contrasts to litigation under the federal constitution.

Several themes dominate state constitutional law. The most important one is that there are important contrasts between the federal and state constitutions that affect how one litigates and interprets them. Perhaps the most important difference between state constitutions and the federal one is the nature and purpose of governmental power addressed by each. The United States Constitution is a power-conferring document. Under the United States Constitution, the federal government has no inherent authority to act unless such power is expressly granted by the text of the Constitution or implied by the necessary and proper clause or another suitable part of the document.

Conversely, state constitutions are power-limiting documents. State legislatures have many inherent powers that are essential attributes of their sovereignty. For example, eminent domain is considered an inherent attribute of sovereignty in most states, as are both taxation and the police power. What this means is that states have inherent power to act or undertake a variety of functions, and the purpose of a state constitution is not necessarily to confer state power but to place limits upon it. When in doubt, states have broad power to act unless their constitutions limit it.

Second, state constitutions have different clauses than found in the United States Constitution, or the clauses have different wording. The uniqueness of wording or clauses can produce different holdings. For example, while the federal constitution provides for a single executive branch head in the president, states have plural executive officers elected separately by the voters. Many states also have explicit separation of powers clauses. The result is that the balance of power and separation of powers arrangements at the state level may be different than found at the national level. This means that debates about judicial power – especially with elected judges –and judicial policy making are different at the state as opposed to the federal level. What may be illegitimate at the federal level may be permissible for state courts.

A third distinguishing feature of state constitutional adjudication is the approach taken in interpretation of [*390] clauses that parallel federal language. Should states simply follow lock step interpretations of their own documents that parallel the Supreme Court or should they follow their own approach? This is the heart of what new judicial federalism is about. Williams’ book is at its strongest in developing and highlighting the different state approaches to this issue.

Of course what makes state constitutional law so fascinating is the focus on rights. This was Brennan’s original concern. Williams here richly details the way rights adjudication has driven new judicial federalism. Gay rights, abortion, privacy, and a host of other parallel rights are explored, as well as unique rights found only at the state level. Finally, the book examines state only issues, such as rights to education, state versus local law, and substantive due processes.

The important message that should be taken away from this volume is that no one should treat state constitutional law as derivative of the federal. There are distinctive issues and arguments that need to be raised at the state level that contrast to approaches used nationally. Understanding those differences offers a richer understanding of the law, states, and American federalism. The other important message is that litigators who correctly understand these differences can add important tools to their legal arsenal, giving them additional claims to raise, often of which are immune and insulated from federal review. Overall, William’s THE LAW OF AMERICAN STATE CONSTITUTIONS is an excellent book deserving of a read by public law scholars and of use in the classroom.

REFERENCES:

Brennan, William J., Jr. 1977. “State Constitutions and the Protection of Individual Rights.” 90 HARVARD LAW REVIEW 489.

Sutton, Jeffrey S. 2009. “Why Teach – and Why Study – State Constitutional Law.” 34 OKLAHOMA CITY LAW REVIEW 165.

Williams, Robert F. 2006. STATE CONSTITUTIONAL LAW: CASES AND MATERIALS. Charlottesville, VA: Lexis-Nexis.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

COMMONWEALTH v. WASSON, 842 S.W.2d 487 (KY 1992).

GOODRIDGE v. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, 440 Mass. 309 (2003).

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