State Constitutional Law: The Modern Experience (American Casebook Series)

In the fourth edition of State Constitutional Law: The Modern Experience, the authors present cases, articles, and other materials about our intensely democratic, ever evolving, and increasingly salient state charters of government. This edition contains two new chapters, one on Representation and Voting, and one on Local Governments. Ever since the U.S. Supreme Court decided in Rucho v. Common Cause (2019) that the Fourteenth Amendment does not apply to challenges to gerrymandered voting districts, the States have become the focus of reform efforts in this area and with respect to many other voting issues. In the short time since Rucho, the States have seen plenty of state court debates about the meaning of a wide variety of state constitutional guarantees, generating a rich set of decisions about these vexing issues. Much of American government turns on what should be national and what should be local. The local side of the equation includes not just state governments but cities, counties, and townships too. In America circa 2023, these truly local governments have become a third source of governmental innovation, a form of federalism within federalism, and a bountiful source of debates about the meaning of Home Rule guarantees in most state constitutions.

The casebook starts by placing state constitutions in context―in the context of a federal system that leaves some powers exclusively with the States, delegates some powers exclusively to the Federal Government, and permits overlapping authority by both sovereigns in many areas. The resulting combination of state and federal charters―what should be called American Constitutional Law―presents fruitful opportunities for give and take, for exporting and importing constitutional insights between our different sovereigns.

The casebook often addresses the point by explaining how the U.S. Constitution deals with an issue before discussing how the state constitutions handle an identical or similar issue. At other times, the casebook explains how the state constitutions contain provisions that have no parallel in the U.S. Constitution. A central theme of the book, explored in the context of a variety of constitutional guarantees, is that state constitutions provide a bountiful source of rights independent of the federal constitution―and a potential source of data before the U.S. Supreme Court decides to nationalize or denationalize a right under the U.S. Constitution. Considerable space also is devoted to the reasons why a state court might construe the liberty and property rights found in its state's constitutions more or less broadly than comparable rights found in the U.S. Constitution. Among the reasons considered: differences in the text and history of the state and federal guarantees, the smaller scope of the state courts' jurisdiction, state constitutional history, unique state traditions and customs, elections of state court judges (and the possibility that this makes them less likely to "lockstep" with their federal brothers and sisters), and disagreement with the U.S. Supreme Court's interpretation of similar language, whether due to push back with respect a federal doctrine in a given area (say tiers of review) or push back with respect to a method of interpretation used by the federal court in a given area (say originalism or living constitutionalism). State constitutional law, like its federal counterpart, is not confined to individual rights. Structure matters too―often more so. The casebook explores the organization and structure of state and local governments, the methods of choosing state judges, the many executive-branch powers found in state constitutions but not in their federal counterpart, the plural election of many state executive officials, the ease with which the people may amend their state constitutions, and other topics, such as taxation, public finance and school funding. Bringing a lot of these topics together is a chapter on Administrative Law, where the comparison between federal and state law is striking. In many ways, the state courts have been the leaders in dealing with difficult issues related to the delegation of legislative powers (or not) and deference to administrative agencies (or not). A new chapter on Local Governments opens a fresh vista on divisions of powers with its focus on the meaning of the Home Rule guarantees found in most state constitutions.

The casebook is not parochial. It looks at these issues through the lens of important state court decisions from nearly every one of our 50 States. In that sense, it is designed for a survey course, one that does not purport to cover any one State's constitution in detail but that considers the kinds of provisions found in many state charters. That said, an invigorating exercise is to spend the first ten minutes of each class devoted to reports from individual students about potentially useful or exotic provisions found in the constitution of their home State or a State of interest. Like a traditional contracts, real property, or torts textbook, the casebook uses the most interesting state court decisions from around the country to illustrate the astonishing array of state constitutional issues at play in American Constitutional Law.

It is difficult to overstate the growing significance of state constitutional law. Many of the ground-breaking constitutional debates of the day are being aired in the state courts under their own constitutions―often as a prelude to debates about whether to nationalize this or that right under the National Constitution. To use a recent example, it is doubtful that there would have been a national right to marriage equality in 2015, see Obergefell v. Hodges, without the establishment of a Massachusetts right to marry in 2003, see Goodridge v. Department of Public Health. The same is true in other areas of constitutional litigation, whether it is gerrymandering, right to bear arms, capital punishment, property, licensing, school funding, or free exercise claims. More recently, the U.S. Supreme Court's 2022 decision to overrule Roe and Casey in Dobbs v. Jackson Women's Health Organization placed a spotlight on the States when it comes to legislative or constitutional protections related to abortion. Before and after Dobbs, some States have sought to amend their constitutions to protect abortion rights, and others have responded with state court decisions in the area, some recognizing such rights under state due process and right to privacy provisions, others rejecting such claims. In these areas, and many more, the state courts often have been the first responders and the key innovators, invoking their own constitutions to address pressing individual rights and structural debates. The mission of the casebook is to introduce students to this increasingly significant body of American law and to prepare them to be fully equipped, as opposed to half equipped, to represent clients involved in constitutional cases of the twenty-first century.