State ConStitutionaliSm 2134 C · 2013. 7. 8. · 4 State Constitutionalism in the 21st Century:...

State

ConStitutionaliSm

21st Century

September 22, 2010

Carlisle, Pa

in the

1 State Constitutionalism in the 21st Century

State Constitutionalism

21st Centuryin the

Penn State Law

University Park, Pennsylvania

law.psu.edu

September 22, 2010

aGenDa

weLcome anD IntroDUctIon ........................................................................ 8:30 to 9:00 a.m

comParatIve SUb-natIonaL conStItUtIonS ............................................... 9:00 to 10:15 a.m.

Professor G. alan tarr, Professor robert F. williams, Professor James a. Gardner,

mr. Jonathan L. marshfield

break ........................................................................................................ 10:15 to 10:30 a.m.

InterPretatIon oF State conStItUtIonS .................................................... 10:30 to 11:15 a.m

Hon. Jack L. Landau, Professor Lawrence m. Friedman

FeDeraLISm anD State conStItUtIonS: Part I ............................................ 11:15 a.m. to noon

Professor Johanna kalb, Professor Jim rossi

LUncH.......................................................................................................... noon to 1:30 p.m.

FeDeraLISm anD State conStItUtIonS: Part II ........................................... 1:30 to 2:30 p.m.

Professor Joseph blocher, Professor John Dinan, Professor robert a. Schapiro

State conStItUtIonaL remeDIeS ................................................................. 2:30 to 3:30 p.m.

Professor Helen Hershkoff, Professor Justin r. Long, Professor Gary S. Gildin

break ........................................................................................................... 3:30 to 3:45 p.m.

conStItUtIonaL cHanGe............................................................................... 3:45 to 4:45 p.m.

Professor Gerald benjamin, Professor ann m. Lousin, Professor Daniel b. rodriguez

concLUDInG remarkS................................................................................... 4:45 to 5:00 p.m.


Gerald Benjamin

Distinguished Professor of Political Science

associate vice President for regional engagement

Director of the center for research, regional education and outreach

SUnY new Paltz

Professor Gerald benjamin was appointed as associate vice president for regional engagement

and Director of the center for research, regional education and outreach (crreo) at SUnY

new Paltz in 2008. crreo is the principal locus of the college's efforts to raise its level of en-

gagement within communities, governments, not-for-profits and businesses across the Hudson

valley. It seeks to conduct research on regional topics; encourage faculty to build regionally-based

service activity into their scholarship and teaching; create and direct institutes and programs to

meet regional needs; and offer conferences and programs on matters of regional interest.

Professor benjamin, who joined the new Paltz faculty as an assistant professor of political science in

1968, achieved the University's highest rank in 2002 when he was appointed Distinguished Pro-

fessor by the SUnY board of trustees. He served as chair of the Department of Political Science,

presiding officer of the faculty and (for twelve years beginning in 1996) dean of the college of Lib-

eral arts and Sciences. the college of Liberal arts and Sciences is the largest, most complex aca-

demic unit at SUnY new Paltz. During benjamin's time as dean, the faculty of the college grew in

numbers and diversity and underwent extensive renewal. additionally, the college was placed on

sound organizational and financial footing, and numerous major and minor programs were added

and/or revitalized. among the most notable was the interdisciplinary major in asian Studies.

abstract:

the Constitutional Convention Catch – 22 in new york

State constitutions commonly provide their legislatures with the power to initiate constitutional

amendment or revision. but additionally, twenty-five state constitutions expressly provide one or

more of three methods for constitutional amendment that bypasses those in power: the constitu-

tional initiative, the constitutional commission or constitutional convention. and fourteen state

constitutions require the periodic placement on the ballot of a question concerning whether a

convention should be held to revise their basic documents. these provisions exist because, as I

elsewhere noted, constitution-writers knew that “as beneficiaries of the political and governmen-

tal status quo legislators frequently resist change in the structure and process of state govern-

ment.”

State constitutions continue to be amended. according to the 2009 edition of The Book of the

States 111 amendments were offered in 2008. of these, 78 changes were initiated in state legisla-

tures, of which 52 were adopted. of the 33 amendments that resulted from processes that by-

passed these legislatures, 15 were approved at the polls. but as John Dinan has pointed out,


citizens — where they have the option — have in recent years foregone voting affirmatively on the

automatic convention question, the primary method for constitutional revision that bypasses

state legislatures. convention calls failed in connecticut, Hawaii and Illinois in 2008. Georgia’s

(1982) was the last new constitution adopted. the last convention, held in Louisiana almost

twenty years ago (1992) was staffed by legislators, not separately elected delegates. So we appear

to be well into a full blown period of state constitutional conventionophobia.

one reason that this phobia holds sway in new York is that the legislature has come to dominate

not only the path to constitutional change over which it has formal power, but also the path de-

signed to bypass it. It achieves this by exercising two gate-keeping functions: process change gate-

keeping and convention preparation gate-keeping.

Process Change Gate-keeping: the new York state constitution specifies change process, some

explicitly adopted as reform measures in 1894, others that are the unintended consequence of

these actions, that are now regarded by many reformers as problematic. they refuse to endorse a

convention until these processes are changed. but the only way that these changes may be

achieved is by constitutional amendment, through the legislature. by failing to act on these the

legislature can thus block the coalescence of support for a convention.

Convention Preparation Gate-keeping: John Dinan has shown that the likelihood of a positive

vote on an automatic convention question increases when sitting political leaders endorse the

idea, and when serious preparations are made for a convention in advance of the referendum

vote. the legislature in new York has diminished the likelihood of the success of a convention

question by failing to take steps to prepare, or withholding support when the governor seeks to

prepare. It then may argue either that a convention is unwise because there has been no prepara-

tion, or that it cannot support an executive-dominated process that unfairly and disproportion-

ately “targets” the legislature.

there are, of course, other reasons for the growing virulence of conventionophobia in new York.

For example:

Timing, if Not Everything, is Certainly Something: a third problem is one of timing. the

essence of the automatic convention question is that it is automatic; it appears on the ballot on a

fixed cycle (in new York, every twenty years). It was last asked in 1997, and will next be asked in

new York in 2017. most importantly, whether to call a convention is thus not a question that

arises in response to a popular movement, or a felt need in the electorate.

right now new York is in deep crisis. the state faces massive deficits. our government is in disar-

ray, and has been for some time. corruption is epidemic. Public opinion polls reflect citizens’ will-

ingness to hold a constitutional convention to address some of the serious structural issues in the

state’s governance system. the leading candidate for Governor of new York, andrew cuomo, has

endorsed the idea of a “people’s convention.” but mindful that the legislature won’t call a conven-

tion and the automatic vote is years off, the New York Times in a recent editorial denounced the

idea as a cynical ploy, a distraction from reforms that required immediate attention.


Aggregation of Entrenched Interests: one frequently noted difference between the national con-

stitution and state constitutions is that the latter are a locus of “super legislation,” provisions en-

tered into them at some time in history by groups seeking to place their particular priorities

beyond the easy reach of the legislature. In new York, environmentalists seek to protect the cen-

tury-old constitutional provision that assures that the catskill and adirondack Preserves will re-

main forever wild. organized public employees are interested in equally entrenched

constitutional provisions assuring hiring on the basis of “merit and fitness” and protections af-

forded public sector worker pensions. many other examples could be given.

the summary point is that legislators are not the only ones with an interest in the status quo.

when aggregated, the interests of these groups, many of them ordinarily regarded as politically

“liberal,” produce a powerful coalition committed to the idea that the risk of change through a

convention far outweighs the potential benefits. to protect particular interests entrenched in con-

stitution-based “super legislation” they combine to block the public interest, when reforms in the

basic structures and processes of government are needed.


joSePh BloCher

assistant Professor of Law

Duke Law School

Professor Joseph blocher joined the Duke Law School faculty in 2009. His principal academic in-

terests include constitutional law, the First and Second amendments, capital punishment, prop-

erty, and law and development. He received his J.D. from Yale Law School, then clerked for Judge

Guido calabresi of the U.S. court of appeals for the Second circuit and Judge rosemary barkett

of the U.S. court of appeals for the eleventh circuit, and practiced in the appellate group of

o’melveny & myers. Professor blocher’s work has been published in the New York University

Law Review, Duke Law Journal, Georgetown Law Journal, Minnesota Law Review, in the on-

line editions of the Yale Law Journal, Virginia Law Review, Northwestern Law Review, and in

other academic journals. He is a member of the north carolina bar.

abstract:

State supreme courts and the United States Supreme court are the independent and final arbiters

of their respective constitutions, and may therefore take different approaches to analogous state

and federal constitutional issues. Such issues arise often, because the documents were modeled

on each other and share many of the same guarantees. In answering them, state courts have, as a

matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts,

by contrast, have largely ignored state constitutional law when interpreting the federal constitu-

tion. In McDonald v. Chicago, to take only the most recent example, the court declined to adopt

the state courts’ near-unanimous conclusion that the proper standard of review for regulations of

the individual right to bear arms is intermediate scrutiny. In an age of growing international com-

parativism, this lack of intranational borrowing is striking, especially since state constitutions

served as the template for the federal constitution and generally protect the same rights as are

found in the federal bill of rights. In a constitutional system that claims to be committed to fed-

eralism and respect for the states, why is it that state constitutional law has had such a slight im-

pact on federal constitutional doctrine? this article seeks to answer that question, and suggests

that in certain circumstances federal courts should look to state constitutional law when faced

with analogous federal constitutional controversies.


jamiSon e. ColBurn

Professor of Law

Penn State Law

Professor Jamison colburn, a noted scholar of environmental law and policy, joined the Penn

State Law faculty in 2008 to teach environmental Law, natural resources Law, Property, and

administrative Law. Prior to teaching, Professor colburn was an enforcement lawyer for the U.S.

environmental Protection agency and a collaborating researcher with the Project on Public Prob-

lem Solving at columbia University, which studied the collaborative roles played by local and re-

gional grassroots organizations. He holds degrees from the State University of new York

(Plattsburgh), rutgers University, Harvard Law School, and columbia University.

Professor colburn has published widely on public lands management, administrative law, wildlife

habitat, and other environmental topics. He is presently at work on a book, Localism's Ecology:

Nature and the Suburban Nation, which maps an intersystemic approach to biodiversity conser-

vation in america.


john dinan

associate Professor of Political Science

wake Forest University

Professor John Dinan’s research focuses on state constitutionalism, federalism, and american po-

litical development. His books include The American State Constitutional Tradition and The Vir-

ginia State Constitution: A Reference Guide. recent articles include “the Political Dynamics of

mandatory State constitutional convention referendums: Lessons from the 2000s regarding

obstacles and Pathways to their Passage” and “Patterns of Subnational constitutionalism in Fed-

eral countries.” He writes an annual review of state constitutional developments for The Book of

the States.

abstract:

State Constitutional amendment Processes and the Safeguards of american

Federalism

Federalism scholars have studied the range of ways by which state interests are advanced in the

american federalism system, including through lobbying, federal lawsuits, state statutes, and

state non-participation in federal programs. State constitutional law scholars, meanwhile, have

studied the ways that state court rulings have since the 1970s provided greater protection for

rights than at the federal level, and these scholars have in recent years highlighted the federalism

implications of these rulings. I call attention in this paper to another vehicle by which state inter-

ests are advanced in the federal system and with increasing frequency – state constitutional

amendment processes – and I analyze the conditions under which amendments can be effective,

especially in comparison with traditional mechanisms of state influence. although in previous

years state amendments were occasionally proposed in response to federal action or inaction, the

early 21st century has seen a surge of state amendments intended to advance state interests in the

federal system, whether by enacting policies blocked at the federal level or aiding in the reversal

of federal statutes or court rulings, and on a range of issues: eminent domain, affirmative action,

minimum-wage, stem cell research, abortion, medical marijuana, health care, and union organiz-

ing. as it turns out, in a number of these cases, constitutional amendment processes are serving a

role that can be played just as effectively by traditional mechanisms of state influence, and there

is no reason why amendment processes are any more effective than these mechanisms. but in

other instances, state constitutional amendment processes are more effective than alternative

mechanisms such as state statutes and state court rulings, on account of the disinclination or re-

sistance of other state officials; in still other instances, amendment processes are effectively sup-

plementing traditional mechanisms such as lobbying and federal lawsuits.


lawrenCe m. Friedman

Professor of Law

new england Law

Professor Lawrence Friedman teaches courses in constitutional law, state constitutional law, pri-

vacy law, and national security law. before joining the new england Law faculty in 2004, he was

a visiting assistant professor of law at boston college Law School and a climenko-thayer Lec-

turer on Law at Harvard Law School. His books include The Case for Congress: Separation of

Powers and the War on Terror (ashgate), with victor Hansen, and the forthcoming treatise, The

Massachusetts State Constitution (oxford University Press), with Lynnea thody. Professor Fried-

man has published numerous articles on constitutional law, state constitutional law, and national

security law. He is a member of the board of directors of the massachusetts appleseed center for

Law and Justice. Professor Friedman holds law degrees from boston college Law School and

Harvard Law School, and served as a law clerk to the Hon. John t. broderick, Jr., of the new

Hampshire Supreme court.

abstract:

Path dependence and the external Constraints on independent State

Constitutionalism

the promise of “the new Judicial Federalism” — of the independent interpretation by state courts

of state constitutional corollaries to the federal bill of rights — has gone largely unfulfilled. In

terms of doctrinal development, the project of independent state constitutionalism, launched in

earnest with the publication of United States Supreme court Justice william brennan’s call to

arms in the pages of the Harvard Law Review, is today more an aspiration than a practice. State

courts rarely engage in the difficult task of trying to establish doctrinal tests that do not flow from

federal precedent. why do these courts seem content to allow the U.S. Supreme court to create

the doctrine that governs shared textual commitments to individual rights and liberties, like the

protections of free expression, privacy, due process of law and equal treatment before the law? I

argue that the lack of independent constitutional analysis does not represent a failure of interest

on the part of state courts, or a failure of methodology, character, or culture, but rather is simply

the consequence of strong path dependence. this paper represents a descriptive effort, to explain

both how and why state constitutionalism is often path dependent, and why the conditions under

which state courts operate promote path dependence. I conclude that the fact of path dependence

does not mean that state courts cannot make valuable contributions to constitutional discourse —

to the ongoing discussion among judges, advocates, commentators and citizens about constitu-

tional meaning. Despite the constraints on the ability of state courts to innovate doctrinally,

independent state constitutional interpretation in individual rights cases remains normatively de-

sirable — but we must temper our expectations about what state courts actually may be able to ac-

complish in these cases.


jameS a. Gardner

vice Dean for academic affairs and

Joseph w. belluck and Laura L. aswad Professor of civil Justice

State University of new York, University at buffalo Law School

Professor James a. Gardner teaches in the areas of constitutional law, government, and election

law. Gardner received his b.a. from Yale in 1980 and his J.D. from the University of chicago in

1984. From 1984 to 1988, he practiced in the civil Division of the United States Department of

Justice in washington, D.c. He is author most recently of What Are Campaigns For? The Role of

Persuasion in Electoral Law and Politics (oxford 2009) and Interpreting State Constitutions: A

Jurisprudence of Function in a Federal System (chicago 2005). His edited volume New Fron-

tiers of State Constitutional Law: Dual Enforcement of Norms (with Jim rossi, co-ed., oxford)

will be published later this year.

abstract:

Sustainable decentralization: Power, extraconstitutional influence and

Subnational Symmetry in the united States and Spain

(by james a. Gardner and antoni abad i ninet)

In the madisonian tradition of constitutional design, the foundation of a sustainable federalism is

thought to be a scientifically precise balancing of national and subnational power. experience

shows, however, that national and subnational actors in highly diverse systems are capable of de-

veloping a rich array of extraconstitutional methods of mutual influence, so that the formal, con-

stitutionalized balance of power rarely settles the question of the actual balance of power between

levels of government. a more important factor in ensuring the long-term sustainability of a mean-

ingfully federal system is the degree of symmetry across subnational units in their relation to the

central state. a comparison of the U.S. and Spain suggests that federalism is most directly threat-

ened when subnational units compete not collectively with the central state, thereby checking its

power, but with each other, a condition that furnishes the central state with opportunities to ex-

ploit subnational rivalries in ways that risk genuine, long-term destabilization.

Gary S. Gildin

Professor of Law

Hon. G. thomas and anne G. miller chair in advocacy

Director of the miller center for Public Interest advocacy

Penn State Law

Professor Gary S. Gildin is a graduate of the University of wisconsin and Stanford Law School.

Professor Gildin began teaching at Penn State after practicing law with the Sonnenschein firm in

chicago. Professor Gildin’s presentation in this Symposium merges two areas of his teaching and

scholarship — remedies for violation of federal constitutional rights and protection of individual

liberties under state constitutions. Professor Gildin also has witnessed the practical importance of

remedies in his frequent service as pro bono counsel on behalf of persons who have been deprived

of their constitutional rights.

abstract:

redressing deprivations of rights Secured by State Constitutions: Stepping outside

the Shadow of the Supreme Courts Constitutional remedies jurisprudence

both as a theoretical and practical matter, the availability of an efficacious remedy is indispensa-

ble to a regime of constitutional protection of individual rights. as chief Justice marshall wrote in

Marbury v. Madison, 5 U.S. (1 cranch) 137, 163 (1803), “[t]he very essence of civil liberty cer-

tainly consists in the right of every individual to claim the protection of the laws, whenever he re-

ceives an injury. one of the first duties of government is to afford that protection.” where the

legal system does not supply a meaningful remedy, victims of government wrongdoing will have

neither the incentive nor the means to file a civil action to redress deprivations of their constitu-

tional rights.

In the first forty years of the “rediscovery” of state constitutions, courts have been fully occupied

defining the substantive contours of liberties independently guaranteed by state constitutions.

State courts are just beginning to confront the second generation of state constitutionalism —

prescribing the appropriate remedy where a state or local official has invaded a right guaranteed

by the state constitution. In addressing this frontier issue, state courts will be tempted to mimic

the United States Supreme court’s jurisprudence of remedies for violations of constitutional

rights protected by the federal constitution.

the United States Supreme court’s constitutional remedies doctrine is founded exclusively on the

intent of the 1871 United States congress that enacted 42 U.S.c. § 1983. Section 1983 authorizes a

civil action to redress deprivation of federal constitutional rights caused by persons acting under

color of state law. the Supreme court’s interpretation of Section 1983 has imposed three signifi-

cant obstacles to a citizen’s ability to recover compensation for injuries suffered as a result of the

infringement of her constitutional rights. First, the individual public official who caused the viola-



tion is immune whenever the constitutional right was not “clearly established.” Second, local gov-

ernment entities are not vicariously liable for the unconstitutional conduct of their agents acting

in the scope of their governmental employment. Instead, the entity is liable only in the narrow

circumstance where the agent’s act represents the “policy” of the government. Finally, state gov-

ernmental entities are wholly immunized from liability for damages caused by their officials who

deprive citizens of constitutional liberties.

this article argues that, as with the rights side of the equation, state courts must develop inde-

pendent remedies where state and local government officials violate state constitutional liberties.

the intent of the federal congress that enacted Section 1983 almost 140 years ago is irrelevant to

state courts tasked with determining the appropriate relief for state constitutional wrongs. Fur-

thermore, the three obstacles to liability under Section 1983 are premised in the structural con-

cern that the federal government not unduly impinge on the prerogatives of the states. Federalism

tenets do not pertain to a state court enforcing state constitutional constraints against its own

public officials and government entities. third, the United States Supreme court legislated the

obstacles to Section 1983 liability without benefit of the views of the lower courts or advocates be-

fore the court. the Supreme court’s ipse dixit does not represent a consensus as to the appropri-

ate allocation of the risk of loss from constitutional violations. Just as state courts properly may

serve as a laboratory for the substantive boundaries of individual liberty, state courts may and

should step outside the shadow of the United States Supreme court in performing the co-equal

responsibility of developing remedies for invasions of state constitutional rights.


helen herShKoFF

Herbert m. and Svetlana wachtell Professor of constitutional Law and civil Liberties

new York University School of Law

Professor Hershkoff co-directs the arthur Garfield Hays civil Liberties Program. before joining

the nYU faculty, Hershkoff practiced law for almost twenty years and participated in many state

court cases involving state constitutional claims to social and economic rights. Stephen Loffredo,

Hershkoff’s co-author, is a Professor of Law at the city University of new York School of Law,

where he directs the economic Justice Project of main Street Legal Services. Professor Loffredo

previously was a staff attorney with the Legal aid Society and is a cooperating counsel with the

Urban Justice center in new York. Hershkoff and Loffredo are the co-authors of The Rights of

the Poor (1997) and have worked as co-counsel in state constitutional cases in new York involv-

ing assistance to the poor.

abstract:

State Courts and Constitutional Socio-economic rights:

exploring the underutilization thesis

this article examines state judicial remedies in “positive” rights cases. a new conventional wis-

dom, largely drawn from foreign judicial practice, posits that constitutional socio-economic rights

are justiciable but may be enforced only through procedural and declaratory remedies. Forty

years of state experience in cases involving state constitutional socio-economic rights suggests

that remedies in some cases may be substantive and coercive without undermining separation of

powers and other important values. at the same time, many state courts continue to resist treat-

ing positive claims as justiciable rights. we argue that judicial underutilization of state constitu-

tional socio-economic provisions in part may be explained by the inappropriate dominance of

federal doctrine concerning declaratory judgments, injunctions, and institutional reform litigation.


johanna KalB


Loyola University

Professor Johanna kalb joined the faculty of Loyola University new orleans college of Law

School in 2008. Her research and teaching interests include civil procedure, federal courts, na-

tional security law, comparative law, and law and development. Professor kalb is a graduate of

Yale Law School and the Johns Hopkins University School of advanced International Studies

where she completed her m.a. in International relations with a focus on african Studies. She re-

ceived her b.a. with distinction from Stanford University. after law school, Professor kalb served

as a clerk for the Hon. e. Grady Jolly of the United States court of appeals for the Fifth circuit

and the Hon. ellen Segal Huvelle of the District court of the District of columbia. She is admitted

to practice in mississippi.

abstract:

Subnational participation in international law and foreign affairs is now a truism. Little, however,

is understood about the conditions under which states and localities engage with international

law. this article begins to address this gap in the literature by examining local participation in

the project of implementing international human rights treaties. a closer look at the subnational

activities in this area exposes an interesting paradox — state and local engagement among legisla-

tors and executive agencies is more frequent with respect to the un-ratified human rights treaties

than it is with those that have been ratified and are thus the “law of the land.” I explain this para-

dox by suggesting that despite increasing subnational acknowledgement of international law, the

perpetuation of a dualist mindset towards the human rights treaties, both ratified and un-ratified,

continues to impede implementation efforts. Unlike other treaties that have successfully been im-

plemented, the international human rights treaties guarantee broad principles that are not easily

divisible along traditional jurisdictional lines. thus, I contend that a more dynamic federal-sub-

national relationship is necessary to domesticate these instruments and I suggest strategies by

which the federal government could create and promote this kind of cooperative partnership.


the honoraBle jaCK l. landau

Judge Jack L. Landau received his b.a. from Lewis and clark college, his J.D. from northwestern

School of Law, and an LL.m. from the University of virginia School of Law. He was editor in chief

of the law review and the recipient of the bernard F. o'rourke and cornelius Honor Society

awards. He clerked for the Hon. robert c. belloni at the U.S. District court and then entered pri-

vate practice with Lindsay, Hart, neil & weigler. as a partner in that firm, he specialized in com-

plex litigation, including securities, environmental, and public utilities matters. In 1989, he left

private practice to work at the oregon Department of Justice, first as the attorney in charge of the

trial Division's Special Litigation Unit and later as oregon's Deputy attorney General. He repre-

sented state agencies in state and federal court at trial and on appeal, including before the United

States Supreme court. In December 1992, Governor barbara roberts appointed Judge Landau to

the court of appeals. He was elected to a full term in 1994 and re-elected in 2000 and 2006. He

currently serves as the Presiding Judge of Department 2. In may 2010, Judge Landau was elected

to the oregon Supreme court, where he will begin serving in January 2011. Judge Landau is a

member of the adjunct faculty at willamette University college of Law, where he has taught legis-

lation for the last eighteen years. He is the author of a number of law review articles on statutory

and constitutional interpretation, including “Hurrah for revolution: a critical assessment of

State constitutional Interpretation,” published in the Oregon Law Review, “a Judge's Perspec-

tive on the Use of History in State constitutional Interpretation,” published in the Valparaiso

University Law Review, and “Should State courts Depart from the Fourth amendment? Search

and Seizure, State constitutions, and the oregon experience,” published in the Mississippi Law

Journal.

abstract:

Some thoughts about State Constitutional interpretation

In this article, oregon court of appeals Judge Jack L. Landau offers his views on how state courts

should interpret their state constitutions. He frames his approach to state constitutional interpre-

tation in terms of three questions: "whether," "when," and "how."

by "whether," Judge Landau refers to the question of whether state constitutions should be given

independent legal significance, particularly when a state provision finds a parallel in the federal

constitution. Judge Landau rejects challenges to the legitimacy of state constitutionalism and as-

serts that, in our system of dual sovereignty, state constitutions are entitled to legal significance

apart from parallel provisions of the federal constitution.

by "when," Judge Landau refers to the timing of state constitutional interpretation in relation to

the interpretation of parallel provisions of the federal constitution. Judge Landau urges what is

known as the "primacy" approach, which suggests that courts should turn to their state constitu-

tions before considering the meaning and application of provisions of the federal constitution.


turning to the question "how," Judge Landau addresses the interpretive method that courts

should employ in determining the meaning of their state constitutions. Judge Landau begins by

arguing for the importance of adopting rules of state constitutional interpretation, which is rooted

in concerns for the legitimacy of state judicial review and the need to provide principled guidance

to the bench and the bar. He then reviews arguments for and against familiar approaches to fed-

eral constitutional interpretation and observes that, because of the distinctive nature of state con-

stitutions, those arguments do not always apply. taking into account the nature of state

constitutions, Judge Landau suggests a "dynamic" approach to state constitutional interpretation:

In the case of recent, detailed provisions that are frequently accompanied by extensive records of

original meaning and intended effect, Judge Landau suggests that those understandings and in-

tentions must be respected. but, in the case of older, more open-ended provisions that are not ac-

companied by a reliable historical record, judges must derive from the state constitution broader

principles that may be applied to current circumstances. In addition, Judge Landau suggests that,

because of the importance of legitimacy concerns, state courts should be less constrained by prin-

ciples of stare decisis. In all events, he contends, judges should "show their math" and be candid

about the elements of judgment that are entailed in their state constitutional decisions.


juStin r. lonG


wayne State University Law School

Justin r. Long serves as an assistant Professor of Law at wayne State University Law School,

where he teaches civil procedure and state constitutionalism. He previously held appointments as

a visiting assistant professor at the University of connecticut School of Law and as an assistant

Solicitor General in the new York attorney general's office. His work on federalism and state con-

stitutions has appeared in the George washington, connecticut, and Pepperdine law reviews; his

book review of Prof. Jeffrey m. Shaman's Equality and Liberty in the Golden Age of State Consti-

tutional Law will appear in the forthcoming annual State constitutional Law Issue of the Rutgers

Law Journal. Professor Long received his J.D. from the University of Pennsylvania and his a.b.

from Harvard University.

abstract:

is the discourse Still Failed?

State constitutional clauses prohibiting “special” laws appear to compel state courts to resist the

capture of state legislatures by economic elites (and to defeat the accompanying devotion of pub-

lic means to private ends). but many state high courts treat these clauses as indistinguishable

from the federal equal Protection clause, despite that provision’s situation in an entirely different

set of historical concerns and interpretive paths.

the special-laws prohibitions seem to offer a textual foundation for economic-rights litigation,

and there are multiple reasons to believe that courts could offer effective remedies for some of

today’s most important social justice problems by interpreting these clauses. Instead, the courts’

unwillingness to undertake a serious special-laws jurisprudence casts profound doubt on the reli-

ability of state constitutions as a basis for progressive litigation.

Furthermore, a “polyphonic” debate on national equality norms depends on state polities’ capac-

ity to diverge from federal practice. If the people cannot change their institutional arrangements

through state constitutionalism (because the courts will federalize the discourse anyway), then

state constitutions do not serve effectively as a democratic forum for interactive federalism.


ann m. louSin

Professor of Law

the John marshall Law School

ann Lousin is a professor of law at the John marshall Law School in chicago. She has a b.a. from

Grinnell college and a J.D. from the University of chicago. In 1970, she was a research assistant

at the Sixth Illinois constitutional convention. From 1971 to 1975, she was on the staff of the Illi-

nois House of representatives, including two years as Parliamentarian of the House. Her book,

The Illinois State Constitution: a Reference Guide, was published in 2009.

abstract:

Constitutional revision: amendments or Conventions?

Should states seek to amend their constitutions by amendments on a piecemeal basis or should

they review their entire constitutions at conventions? Using the 1969-70 Illinois convention and

subsequent amendment attempts as a focal point, Professor Lousin explains the pros and cons of

both approaches. She emphasizes the importance of preparation, involving major stakeholders,

and compromise by all citizens.


jonathan l. marShField

clerk, U.S. District court of new Jersey

mr. marshfield earned an LL.m. in legal theory from new York University School of Law in 2010.

He received his J.D. from rutgers School of Law – camden in 2006 and his b.a. from cedarville

University in 2002. after graduating from rutgers, mr. marshfield clerked for the Hon. James r.

Zazzali, chief Justice of the Supreme court of the State of new Jersey. He then joined the law

firm of Saul ewing LLP as a commercial litigator. mr. marshfield has written various articles re-

garding subnational constitutional law, federalism, state constitutional law, and democratic the-

ory. His publications include Authorizing Subnational Constitutions in Transitional Federal

States: South Africa, Democracy, and the KwaZulu-Natal Constitution, 41 vanD. J. oF

tranSnat’L L. 585 (2008); Providing Meaningful Judicial Review of Municipal Redevelopment

Designations: Redevelopment in New Jersey Before and After Gallenthin Realty Development,

Inc. v. Borough of Paulsboro, 40 rUtGerS L.J. 451 (2009) (with chief Justice James r. Zazzali);

Federalism and Political Competition in Emerging Democracies, 10 waSH. U. GLobaL StUD. L.

rev. __ (forthcoming 2011); and Evaluating South Africa’s Post-Apartheid Democratic

Prospects through the Lens of Economic Development Theory, 9 rIcH. J. GLobaL L. & b. __

(forthcoming 2011).

abstract:

models of Subnational Constitutionalism

not all federal systems permit their subnational units to adopt constitutions. India’s federal

arrangement, for example, devolves significant substantive powers to its constituent states but

prohibits all states except one from adopting constitutions. the United States, on the other hand,

has required all territories to adopt their own constitutions before admitting them into the Union.

South africa’s federal system presents an interesting variation on those two extremes because it

vests the provinces with very little independent authority but permits them to adopt constitutions

if they choose. these structural variations suggest that subnational constitutionalism is a political

institution distinct from, although derivative of, federalism. Yet, scholars have largely failed to ar-

ticulate a clear institutional description of subnational constitutionalism or theorize regarding

any independent normative justifications for introducing subnational constitutionalism into fed-

eral systems. this represents an unfortunate blind spot for contemporary constitution-makers

who increasingly search for creative structural solutions to serious social and political cleavages.

this paper argues that subnational constitutionalism is best described as the authority of subna-

tional units within a federal system to exercise some degree of independence in structuring

and/or limiting their own power. building on that working description, the paper seeks to identify

possible normative justifications for introducing subnational constitutionalism into federal sys-

tems and explore some of the legal and socio-political parameters necessary for those justifica-

tions to hold true. It argues that there are at least three justifications for subnational


constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political

communities within a single constitutional regime. Second, it can uniquely contribute to federal-

ism’s liberty-protecting, check-and-balances function. third, it can improve the deliberative qual-

ity of democracy within subnational units and the federal system as a whole. the ultimate goal of

this paper is to move towards a systemization and critical analysis of possible normative justifica-

tions for introducing subnational constitutionalism into federal systems.


daniel B. rodriGuez

minerva House Drysdale regents chair in Law

University of texas School of Law

Daniel b. rodriguez is the minerva House Drysdale regents chair in Law at the University of

texas School of Law. He is also a Professor of Government (by courtesy) and a research fellow in

Law and Urban economics at the baker Institute for Public Policy, rice University.

before coming to texas in 2007, Professor rodriguez served as dean and warren Distinguished

Professor of Law at the University of San Diego. He was previously on the faculty at the Univer-

sity of california at berkeley (boalt Hall) School Law. Professor rodriguez has had visiting ap-

pointments at many universities and law schools including USc, UcSD, Illinois, virginia, the

Hoover Institution at Stanford University, and the Free University of amsterdam. During the

spring of 2011, he will serve as the Stephen & barbara Friedman visiting Professor at columbia

University Law School.

Professor rodriguez has written and spoken widely on a range of topics in american public law,

including state and federal constitutional law, administrative law, statutory interpretation, and

local government law. His work is broadly interdisciplinary, drawing upon political science and

economics to illuminate questions of public policy and legal theory. He has published many arti-

cles in various legal and social science journals and has recently contributed chapters to two sepa-

rate oxford Handbooks, one on political economy and the other on law and politics. He is the

author of a forthcoming book on State Constitutional Law and its Processes (aspen Press).

Professor rodriguez is a graduate of the Harvard Law School and california State University Long

beach. He is an elected member of the american Law Institute and the american bar Foundation

and currently serves on the executive committee of the association of american Law Schools.

abstract:

revision, amendment, and the dynamics of State Constitutional Change

as state courts struggle to distinguish between what sorts of constitutional modifications are

properly deemed amendments and which are revisions, what escapes sustained attention is the

larger point: what is the right structure for constitutional development in our state constitu-

tional systems? In my paper for this symposium, I consider the revision/amendment distinction

in light of broader themes about state constitutional change and development. modalities of

change, I explain, are constructed around general theories of constitutional stability (a necessary,

but not sufficient, condition for constitutional function and order) and optimal public governance

under conditions of economic scarcity, political conflict, and social movements. In short, I use

the revision/amendment puzzle as a window into state constitutionalism in the modern era.


jim roSSi

Harry m. walborsky Professor and associate Dean for research

Florida State University college of Law

Professor Jim rossi teaches administrative law, energy law and torts. Professor rossi has written

extensively on administrative law topics such as the role of public participation in agency deci-

sionmaking, judicial review, the nondelegation doctrine, and the intersection between regulatory

and judicial enforcement regimes. He has also written on state constitutions and state administra-

tive law, with a particular focus on separation of powers and state approaches to administrative

procedure and regulatory reform.

along with James Gardner, he is editor of a collection of essays, New Frontiers of State Constitu-

tional Law (oxford University Press 2010); his other books include Regulatory Bargaining and

Public Law (cambridge University Press 2005), a case study of deregulation in the electric power

industry, and he is also a co-author of Energy, Economics, and the Environment (Foundation

Press, 3d ed. 2010) (with Fred bosselman, Jacqueline weaver, David Spence and Joel eisen), the

leading law school casebook on energy law. His articles have appeared in the Virginia Law Re-

view, Michigan Law Review, Duke Law Journal, Texas Law Review, Northwestern University

Law Review, Vanderbilt Law Review, William & Mary Law Review, Iowa Law Review, Admin-

istrative Law Review, Energy Law Journal and many other journals. In addition to his adminis-

trative law scholarship, he has written extensively on energy law, with an emphasis on judicial

review and deregulation, challenges presented by climate change, and the relationship between

economic incentives and legal regulation.

Professor rossi has served as a visiting professor at Harvard Law School, and he also has taught

at vanderbilt Law School, the University of texas Law School and the University of north car-

olina Law School. He holds an LL.m. from Yale Law School, a J.D. from the University of Iowa

college of Law, and a b.a. in economics from arizona State University. before entering academia,

he practiced energy law in washington, D.c., with Sutherland, asbill & brennan and miller, balis

& o’neil. He regularly speaks on administrative and energy law issues and has served as a con-

sultant on a variety of matters related to administrative law and economic regulation.

abstract:

Vertical institutional Concurrence in State Constitutional review

one of the well-recognized problems in judicial review under state constitutions is whether, and

the extent to which, state courts should consider materials and institutional positions of those

outside of a state (what I will call extra-state materials). In the context of same-sex marriage, for

example, it has been argued that it is inappropriate for state judges to consider horizontal out-of-

state backlash (in other states) in making their decisions, but the consideration of in-state politi-

cal backlash can be appropriate to their decisions. taken to the extreme, this account views


politics and other institutional considerations as largely state-centered considerations in state

constitutional law.

In this article, I argue that, whatever position one takes about horizontal backlash, modern state

constitutions must allow for vertical backlash. Specifically, I will explore the extent to which state

courts should consider the position of federal agencies and congress in interpreting state consti-

tutions. In a situation where federal preemption does not apply, what weight should a state court

give to a federal agency interpretation that is consistent with one or more institutions within the

state? Specifically, I will argue in this article, that the consideration of the position of federal

agencies and/or congress by state courts is a relevant factor in interpreting state constitutions,

and that in certain instances it must be taken into account.

to take an example I have addressed elsewhere, where a federal agency is seeking to pursue a

goal but has not preempted a state, implementation of that goal is left largely to the apparatus of

state government. If a state legislature refuses to authorize the executive branch in a state to act,

under a strict construction of that state’s constitutional limitations on separation of powers

(based on constitutional text or precedent), a state executive branch (or a local government) may

not have the authority to act. In interpreting a state constitution, to what extent would it be ap-

propriate for a state court to consider the consequences from vertical institutions, such as those in

the federal government?

I will argue that vertical consequences not only may but must be considered under any theory of

state constitutional interpretation that acknowledges federalism. In addition, I will explore how

consideration of vertical consequences can provide state courts a politically legitimate outside

source of law to help break ties in institutional standoffs. For example, when a state legislature

and executive branch disagree, looking to the position of a federal agency as a tie-breaker can help

state courts avoid wading into controversial political questions in addressing state separation of

powers jurisprudence. another way of thinking of this in cooperative federalism terms would be

that concurrence of a state and federal executive warrants some deference regarding the alloca-

tion of powers within a state where there is no clear constitutional text or doctrine to the contrary.

this has important implications for separation of powers under state constitutions, however, as it

would suggest that separation of powers cannot not based on fixed spheres of authority, but must

be a pragmatic and flexible jurisprudential concept.


roBert a. SChaPiro

Professor of Law

emory University School of Law

robert Schapiro is professor of law at emory University School of Law. Schapiro graduated from

Yale Law School, where he was editor in chief of the Yale Law Journal. He served as a clerk for

Judge Pierre n. Leval, then of the United States District court for the Southern District of new

York, and for Justice John Paul Stevens of the United States Supreme court. He teaches constitu-

tional law, federal courts, and civil procedure. Schapiro’s current research focuses on federalism.

His book, Polyphonic Federalism: Toward the Protection of Fundamental Rights, was published

in 2009 by the University of chicago Press. other recent publications include Interjurisdictional

Enforcement of Rights in a Post-Erie World in Dual Enforcement of Constitutional Norms: New

Frontiers of State Constitutional Law (Jim Gardner and Jim rossi eds., oxford University Press

(forthcoming 2010)); Not Old or Borrowed: The Truly New Blue Federalism, 3 HarvarD L. &

PoL’Y rev. 33 (2009); Monophonic Preemption, 102 nortHweStern L. rev. 811 (2008); and In

the Twilight of the Nation-State: Subnational Constitutions in the New World Order, 39 rUtGerS

L.J. 801 (2008). Schapiro also serves as a director of emory’s center on Federalism and Intersys-

temic Governance.

abstract:

judicial Federalism and the Challenges of State Constitutional Contestation

recent events have illustrated the continuing significance of federalism in facilitating the expres-

sion of divergent constitutional visions in the United States. In areas such as immigration, health

care, environmental law, and marriage, individuals and groups have deployed state and local

structures of government to present constitutional values in opposition to those dominant at the

national level. State governments, in particular, have served as leaders in resisting federal poli-

cies. as scholars have pointed out, indeed celebrated, a significant function of the independent

state systems is to offer alternative constitutional perspectives, and the dynamic interaction of

state and federal voices provides the music of federalism in the United States. the appropriate

mechanism for addressing the resulting conflicts, though, presents ongoing questions. often the

political process mediates the disputes. courts, however, also have come to play a major role in

managing state-federal conflicts. Federal adjudication of disputes between the states and the fed-

eral government dates to the beginning of the republic, but over time doctrines have evolved to

restrain judicial supervision of the structure of the modern regulatory state. the “political safe-

guards of federalism” theory represents one aspect of this judicial restraint. more recently,

though, states have used their special positions to invite federal courts to serve as sites for con-

testing different conceptions of constitutional structure. these state litigation initiatives present

complex political and doctrinal questions. this paper examines this newest judicial federalism —

the judicialization of federal-state conflicts — and assesses the role of courts in resolving these

contests among differing constitutional visions.


G. alan tarr

Director of the center for State constitutional Studies

Distinguished Professor of Political Science

rutgers University-camden

Professor tarr is the author of Understanding State Constitutions (Princeton University Press)

and Judicial Process and Judicial Policymaking (wadsworth Press); co-author of State Supreme

Courts in State and Nation, (Yale University Press) and of American Constitutional Law, (west-

view Press). He serves as editor of State Constitutions of the United States, a 50-volume reference

series (oxford University Press) and was co-editor of the three-volume State Constitutions for the

Twenty-first Century (State University of new York Press), of Constitutional Origins, Structure,

and Change in Federal Countries (mcGill-Queen's), and of Federalism, Subnational Constitu-

tions, and Minority Rights (Praeger). three times the recipient of fellowships from the national

endowment for the Humanities and more recently of a Fulbright Fellowship, he has lectured on

state constitutionalism throughout the United States and on subnational constitutionalism and

federalism in africa, asia, europe, and South america.

abstract:

In most federal systems, the federal constitution is an "incomplete" framework document, in that

it leaves "space" in the federal system's constitutional architecture to be filled by the constitutions

of its sub-national units, even while it sets parameters within which those units are permitted to

act. However, federal systems differ markedly in the amount of space that they allocate to con-

stituent units to define their own goals and establish their own governmental institutions and

processes. this paper examines the range of discretion ("constitutional space") available to con-

stituent units in designing their constitutional arrangements and on how the boundaries of that

space are policed. It also considers what factors influence the scope of sub-national constitutional

space in various federal systems, why sub-national units have occupied or failed to occupy the

constitutional space available to them, and what consequences sub-national constitutionalism has

had on horizontal and vertical relations within federal systems.

roBert F. williamS

Distinguished Professor of Law

rutgers University School of Law - camden

associate Director, rutgers center for State constitutional Studies

robert F. williams is Distinguished Professor of Law at rutgers University School of Law in cam-

den, new Jersey, and associate director of the rutgers center for State constitutional Studies. He

received his b.a. from Florida State University in 1967 and his J.D. from the University of Florida

college of Law in 1969. Prior to attending law school, he served as legislative assistant in the

Florida Legislature during the 1967 constitutional revision Session. He practiced law with Legal

Services in Florida and represented clients before the 1978 Florida constitution revision com-

mission. Professor williams received an LL.m. from new York University School of Law in 1971,

and an LL.m. from columbia Law School in 1980. He teaches civil Procedure, State constitu-

tional Law and Statutory Interpretation at rutgers Law School in camden, new Jersey, in addi-

tion to writing and practicing in those areas. He is the author of The Law of American State

Constitutions (oxford U. Press 2009); State Constitutional Law: Cases and Materials (4th ed.,

Lexis Law Publishers 2006), The New Jersey Constitution: A Reference Guide (rutgers Univer-

sity Press, rev. ed. 1997), Drafting State Constitutions, Revisions and Amendments (2006) (with

Frank P. Grad), and numerous journal articles about state constitutional law and legislation. He is

also coauthor (with Hetzel and Libonati) of Legislative Law and Statutory Interpretation (4th.

ed., Lexis Law Publishers, 2008).

abstract:

tentative thoughts on teaching and researching Comparative Subnational

Constitutional law

the study of american state constitutions has gained substantial momentum in the past genera-

tion. the increasing interest in comparative constitutional law, however, has been characterized

by an almost exclusive focus on national constitutions. a number of countries based on constitu-

tional federalism have component units (states, Länder, cantons, provinces, etc.) that have their

own, subnational, constitutions. to date, comparative constitutional scholars have virtually ig-

nored these different, albeit important, constitutions.

comparative subnational constitutional law can be studied, and taught, from both the top-down

perspective, evaluating the “subnational constitutional space” permitted for component units,

and also from the “bottom-up” perspective, considering what the component units have actually

done as they utilized this constitution-making competence. enough initial materials have now

been published in english to support a more sophisticated research agenda, as well as the devel-

opment of courses on the topic. there are a number of questions that can be asked concerning the

nature of subnational constitutional law, as well as some preliminary observations about the ac-

tual practice of subnational constitutional law.


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