What Does—and Does Not—Ail State Constitutional Law

Abstract

Open a course catalog at most law schools in the country, and you will find a course called “Constitutional Law.” If you happen to take that course, as indeed you must at most of these law schools, you will find one thing more -- that it teaches just one side of the story, focusing on the Federal Constitution, rarely mentioning, if mentioning at all, the constitutions of the fifty states.Why is that? In one sense, the most essential sense, state constitutional law is no less a form of American constitutional law than federal constitutional law. State constitutions, like the Federal Constitution, provide a blueprint for government, allocating authority among the branches of power, establishing the terms of office, and defining the terms of consent. State constitutions, no less than the Federal Constitution, thus establish charters of government that simultaneously empower and constrain: that set forth the rules for regulating the people of a state and limit this authority through liberty, property, structural, and other guarantees. In this sense, state constitutional law parallels federal constitutional law, doing everything the Federal Constitution does, just on a smaller scale.Just? The difference between the size of the territories covered by the one constitution and the other fifty no doubt helps to explain why state constitutional law is taken less seriously, why some might even ask whether state constitutional law amounts to “constitutional law” at all. But does scale alone provide the answer? Some state constitutions after all cover massive territories and populations themselves. In population, California would be the thirty-fourth largest country in the world, and Texas, whose people do not take this kind of thing lightly, would be the forty-eighth largest country in the world. Taken together, more to the point, the fifty constitutions cover all of the land mass and population covered by the United States Constitution, save for a few territories and a conspicuous district, providing a second set of constitutional powers and constraints that touch nearly every American.Scale, then, must be a partial answer, not a complete one. Else, the greatest constitution of all might be the Charter of the United Nations. Scale alone does not explain why most Americans do not know they live in a state with its own constitution. It does not explain why so few law schools teach state constitutional law. Why still fewer of the top-ranked law schools teach the subject. Why so few states place the topic on their bar exams. And it does not explain why many newly minted lawyers, licensed to practice law by individual states, not the United States, do not know what it means when they swear to uphold the Federal Constitution and their state constitution.At least four other features of state constitutional law, it seems to me, diminish it in the eyes of the legal profession: the undue length of most state constitutions; the ease with which they may be amended; the election of judges who interpret them; and lockstep interpretations of the state constitutions with the Federal Constitution. The point of this essay is to examine each critique -- dignifying some, responding to others -- and to place them all in the broader context of American constitutionalism.