State Constitutionalism (Judge-Taught)

This class will examine the emergence of state constitutionalism, sometimes described as a “new judicial federalism.” The idea is not new. At the end of the Warren Court, Justice Brennan famously called on state courts to turn to their own constitutions to fill the vacuum left by a perceived retreat from recognizing federal civil liberties. That said, many states have historically interpreted their unique and varied state constitutional rights provisions in “lockstep” with the rights guarantees found in the federal Bill of Rights. In essence, these states held for years that their state constitutions provided no greater or different rights than those found in the federal Constitution. But this trend has been rapidly changing. The Supreme Court of the State of Hawaii recently issued a decision explaining the unique history and tradition of Hawaii and why its Constitution must be interpreted differently – notably holding that the equivalent “right to bear arms” provision in its Constitution does not provide a state constitutional right to carry a firearm in public. State courts are now actively considering whether there is a right to abortion in their state constitutions. In the last year, the high courts in North Dakota, and Oklahoma struck down abortion bans as violating their state constitution, while the high courts in Idaho and Indiana upheld similar bans under their state constitutions. Also within the last year, the Supreme Court of Virginia held that the rights to freedom of religion in the Virginia constitution are more expansive than the equivalent rights in the federal Constitution. Several states have also concluded that criminal defendants have broader rights under the due process or cruel and unusual punishment clauses of their state constitutions. This course will examine why so many state constitutions were interpreted in lockstep with the Federal constitution for decades, as well as the new opportunities and challenges posed by independent state constitutional interpretation. Should state courts rely on textualism, originalism, history in interpreting their individual constitutions? How much should it matter if a provision has the same text as the federal Constitution? How should state courts consider the intent of the ratifying public given that in many states have often passed entirely new constitutions or significant amendments to their constitutions over the course of time? If constitutional rights end up vary significantly from state to state what will the long term impact be on American democracy and the role of federal courts?