Deep Dive Episode 225 – State Constitutions and Individual Liberty: State or Federal Government as Primary Custodian of Individual Rights?
On June 23, 2022, David A. Carrillo, Christina Sandefur, Robert F. Williams and moderator Braden Boucek joined us to debate the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that’s really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more were explored by this excellent panel of knowledgeable state constitutional law experts.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
Jack Derwin: On June 23, 2022, The Federalist Society’s Regulatory Transparency Project hosted a virtual event titled, “State Constitutions and Individual Liberty: State or Federal Government as Primary Custodian of Individual Rights.” The following is the audio from that event. We hope you enjoy.
Hello, and welcome to this Regulatory Transparency Project virtual event. My name is Jack Derwin, and I’m Associate Director of The Federalist Society’s Regulatory Transparency Project. Today we’re very excited to host a panel discussion titled, “State Constitutions and Individual Liberty: State or Federal Government as Primary Custodian of Individual Rights.”
To discuss this topic, we have a fantastic and intellectually diverse panel joining us. In the interest of time, I’ll keep intros brief now, but feel free to view their full bios at regproject.org.
After discussion between our panelists, we’ll go to audience Q&A, so please enter any questions you have into the Q&A function at the bottom of your Zoom window. Finally, a note that, as always, all expressions of opinion on today’s program are those of the speakers joining us.
David A. Carrillo is Lecturer in Residence and the founding Executive Director of the California Constitution Center at University of California, Berkeley, School of Law. Before entering academia, Dr. Carillo held a number of governmental roles, including Deputy Attorney General with the California Department of Justice, Deputy City Attorney in San Francisco, and Deputy District Attorney in Contra Costa County.
Christina Sandefur is Executive Vice President at The Goldwater Institute, where her work focuses on developing policies and litigating cases advancing healthcare freedom, free enterprise, private property rights, free speech, and taxpayer rights.
Robert F. Williams is Distinguished Professor of Law and Director of the Center for State Constitutional Studies at Rutgers University School of Law. Professor Williams is an expert in state constitutional law, has authored numerous articles and books, participated in a wide range of litigations, and lectured to state judges and lawyers on the topic.
And finally, our moderator today is Braden Boucek. Braden is Director of Litigation at The Southeastern Legal Foundation, where he handles a variety of litigation focused on constitutional issues, particularly at the state level. Previously, Brandon served as Vice President of Legal Affairs at The Beacon Center of Tennessee and as an Assistant United States Attorney for more than nine years. So, as you can tell, no shortage of state constitutional knowledge and experience on today’s panel.
With that, I will get out of the way, Braden, and pass things over to you.
Braden Boucek: Thanks, Jack. Thanks for having us. I’m really excited about this panel, not just because I think this is such an exciting and timely topic—although I think it is. This is a topic that I’m deeply personal and passionate about, but I’m also really excited because I think we just have such a great rock star slate of panelists here. Of course, David, thank you for joining us at this point in time. You’re kind of like the regular on my [inaudible 00:03:09]. I like to think you’re the proverbial Bert Reynolds to my Johnny Carson.
David A. Carrillo: Oh, yeah.
Braden Boucek: I don’t know how you feel about that comparison but, yeah.
David A. Carrillo: I love that.
Braden Boucek: But yeah. That’s high praise from me. Right.
David A. Carrillo: He’s a handsome guy.
Braden Boucek: Can you do the Burt Reynolds’ laugh?
David A. Carrillo: Not at all.
Braden Boucek: Okay. So I’m not going to put you on the spot then.
David A. Carrillo: Terrible at that.
Braden Boucek: Yeah. But thanks for joining us again. We’ve really enjoyed having you.
Bob Williams. Bob, I’m really glad you’re here. This is a first time to have you here, but everybody knows you’re a titan in the area of state constitutional laws. We are overjoyed that you would join us on this important topic. So thank you, Bob, for joining us.
And Christina, deep personal thanks for you joining as well. You and I are old friends at this point in time. Probably, some of the listeners are familiar with you and familiar with the work of Goldwater, but you’re one of the leading practitioners in state constitutional law, and Goldwater’s got a unique role vis-a-vis some spreading state constitutional jurisprudence throughout the country. I hope, at some point in time, on this panel, you can find ways to talk a little bit more about the work you do and the work of Goldwater. Thanks for joining us, Christina.
Christina Sandefur: Thank you.
Braden Boucek: And no introduction would be complete without noting the fallen. We have lost Luke “Icebox” Wake. The regular panelist that we like to have here is not joining us. I’m sure he is listening, but in honor of the release of Top Gun II, I want to express a deep heartfelt sorrow that Luke “Icebox” is not joining us. So with that in mind, let’s go ahead and plunge right in.
State constitutions are an exciting topic. We are undereducated as Americans on the subject of state constitutional law—grossly undereducated. And that’s really just because we are taught exclusively about the US Constitution or the federal Constitution. What I’d like to do, coming out of the gate, is to just give some point of orientation by talking about, when we talk about state constitutions, what are we talking about? How are they more expansive protection of individual liberty? What are some examples, and how are they distinct from the federal provisions?
Christina, I’m going to hand you the ball first. I know you’ve conceptualized state con law provisions into three separate categories. Maybe you could start by sharing that and explain what it means.
Christina Sandefur: Yeah, absolutely. So our state constitutions were always conceived of — from the time of the federal Constitution, I like to say that the framers of our Constitution didn’t just give us one Constitution. Instead, they gave us what now is 51 because every single state, as you noted, has its own constitution. And, really, the way our framers conceived of this is that the federal Constitution would provide a floor of protection for our rights. So that’s the bare minimum.
But states are free and often do go beyond that floor of protections, and they can enact laws or constitutional provisions to protect our rights more broadly than the federal Constitution. And again, the framers of the Constitution designed it this way. James Madison famously wrote in The Federalist that this would provide a double security for the peoples’ rights. And this has been — this sentiment has been echoed throughout our history—Supreme Court justices that are on both sides of the political spectrum; Justice Brennan was famous for trying to revive an interest in state constitutional provisions. And then you have justices more on the right, as well, that often refer to them.
So this is a deep tradition in our American constitutional history, but what a lot of folks don’t realize is that state constitutions actually have many unique provisions that do not have federal counterparts. So if you look at the constitutions of states, and they vary widely from state to state — but they’ll contain provisions to place limitations on government and protect rights that do not exist at all in the federal Constitution.
So one of my favorites is something called the gift clause. Actually, almost every single state constitution has a gift clause. And what this, essentially, is is an anti-subsidy clause. It makes it illegal for governments to give taxpayer money, in the form of subsidies or sometimes even loans, to private entities. Now, every state constitutional gift clause works a little bit differently.
But essentially, these all came out of the 19th century when government was — governments, at the local level and the state level, were subsidizing railroads and banks and other corporations left and right. And they had hoped that in doing that, they could stimulate economic development. And I raise that — I go into that just because that is something that we hear a lot about today, as well, on the federal level. Of course, there is no federal gift clause. One could not imagine, maybe, what congress would do with all of its time if we had a federal gift clause.
But what happened is, they quickly learned the lesson in the 19th century that these subsidies oftentimes lead to waste or corruption. Many states went nearly bankrupt because of these massive subsidies. And so, states amended their constitutions, especially the western states, to include these gift clauses. And the idea is just that government can’t just give away taxpayer money. It can purchase things that are for a truly public purpose, and then it has to, essentially, buy those things as public goods or services. It can’t just pay exorbitant amounts of money and not get something specifically bargained back for taxpayers in return.
We, at the Goldwater Institute, have enforced this clause in the State of Arizona and outside of the State of Arizona. What I think was one of our most impactful wins is a case that came to the Arizona Supreme Court where the court told the City of Phoenix that it actually was unconstitutional for it to give a hundred million dollar gift of taxpayer money, essentially, to a mall just to get a shopping mall to locate in the City of Phoenix versus a neighboring city. And the City of Phoenix said, “Well, this will generate tax revenue, and it’ll create jobs.” But those things are too nebulous, and they don’t count for purposes of a gift clause, so that was a subsidy. The government wasn’t buying anything for taxpayers.
So that’s one provision, again, that just doesn’t exist in the federal Constitution. State constitutions also have things called special law clauses, which say that you can’t bestow special favors on particular groups. You have to write the law in a very broadly applicable way, or, at least, the law has to be something that people can take advantage of and that everyone is eligible, essentially, to meet the criteria.
States have anti-monopoly clauses, which say that government can’t create monopolies. Our groups in the freedom movement have used these, effectively, against state certificate of need laws when government — when state agencies will say that, in order to start your business, you actually have to prove to the government bureaucrats that there is a need for your business before you can get permission to start that business. And your existing competitors can actually object and claim that they’ve got it handled, and they don’t need you to enter the market. So our argument is, “Well, that is, by definition, a monopoly. Those, of course, provisions don’t exist in the federal Constitution.”
So those are some of the unique provisions state constitutions — you were mentioning other categories, Braden. I mean, they also contain a lot of positive rights. That’s not typically the way that we conceive of rights. I think our founding fathers very clearly conceived our rights as being — these are rights that — things that government cannot intrude on, not things that we have some kind of positive right to. But those exist in a lot of state constitutions.
And then also, of course—and I’m sure we’ll get into this throughout the conversation—state constitutions also contain provisions that are very similar or even sometimes exactly the same as exist in the federal Constitution, and those can be interpreted differently than the federal courts interpret those analogous constitutional provisions.
Braden Boucek: Thanks for that. Now, David, I know you’ve got a conceptual framework for understanding state constitutional laws as well. Do you mind sharing that with us and discussing a little bit of some of the unique constitutional law provisions that have caught your attention?
David A. Carrillo: Yeah. I don’t want to replicate too much of what my learned colleague just described for us accurately, so I was going to focus on the specific individual rights, using California as an example. So you could generally divide the differences in state constitutions from the federal Constitution into several broad categories, as she just did. So there’s structural provisions, individual rights provisions, and then more specific prohibitions on government conduct.
So focusing on individual liberty, using California as an example, I think you get a range of differentiation in state court application and interpretation of individual liberties. It’s partly dependent on the text. Is the text of the state provision the same as or pretty close to or completely different from the federal provision, or is the state provision unique in that there’s no analogue to it in the federal Constitution at all? And it also can change over time.
So for example, California formerly had a Fourth Amendment search and seizure type provision that was interpreted much more broadly by the California Supreme Court than federal courts did. The voters in California in 1982 changed that by constitutional amendment and locked California’s criminal procedural rights to federal law. So it used to be different. Now it’s the same.
You could have same-same provisions where California’s equal protection provision mostly looks like federal equal protection law, except we don’t do intermediate scrutiny; it’s only rational basis and strict scrutiny. Moving on to the farther end of the spectrum towards things that are very different, California has a much stricter separation of church and state set of provisions. Those arguably are in peril right now, given recent US Supreme Court decisions in Espinoza v. Montana and Carson v. Makin this week.
Things that are very different are speech. California’s speech rights do not have a state action requirement. It runs against private actors. California also has some express textual provisions that are just completely absent from the federal Constitution, so they’re on the unique end of the spectrum. Rights to privacy, education—which is an example of a positive right—rights to fish, which I think is unique in state constitutions. We have a whole article on water rights.
So again, I would divide it into, are you looking at structural provisions, individual liberties, or the other, sort of, catch-all provision and focusing on the individual liberties categories? There’s a range and a spectrum, so it really depends on what right you’re talking about and at what point in time you’re talking about it.
Braden Boucek: Bob, any response to any of that and, in particular, are there any particular state constitutional law provisions that you find notable or remarkable that the other panelists haven’t touched upon?
I’m going to go ahead and say what I’ve been told countless times over the pandemic, “Counselor, you’re muted.”
Robert F. Williams: No longer. Sorry. I have construction noise and moving noise outside the door. I thought Christina’s introduction was terrific, and I would add to it only a couple of things. One, that, of course, at the time of the framing of the federal Constitution, we already had eleven or so state constitutions, and many of them had their own declarations of rights. So when Madison and others worked on the federal Bill of Rights, they actually used the state declarations of rights as their form book. And none of the examples Christina gave were in any of the original state constitutions.
So the state constitutions, actually, have been described as a sort of a window on the history of the states. And essentially, what they do—in addition to many other things—is reflect the bad actions of states and the amendment process, which—of course, is much easier than the United States Constitution amendment process—has been used to try to close the door on those various sorts of abuses or, at least, perceived abuses in the state governments and local governments. So that’s — one of the extremely important things about working with state constitutions is they’re malleable, amendable, changeable textually, not just through interpretation.
So I think that — and for her to focus on the special laws provision, I think is particularly fitting because that’s not even an individual right. It’s over in the legislative article in most states, and it’s actually a limit on the way the legislature makes laws. But for those of us who do litigation, it’s available to our clients who immediately would look at a classification case, say, and say, “Oh, well, that’s equal protection. That’s what that is.” And, maybe, but as we know in federal Con law, mostly, that’s a losing argument. And in the states, there’s much more possibility. I think David mentioned the California — I like to call them equality clauses because most of them don’t say equal protection.
David A. Carrillo: California’s does.
Robert F. Williams: What? Sorry?
David A. Carrillo: California’s does.
Robert F. Williams: California’s does say that, yes, but not a lot of states do. And those equality clauses often come from a very different period in history. And they’re actually about treating people better than others rather than treating people worse. And just let me say a couple things about what David said. It’s very useful, I think, as he’s done, to provide a typology of the kinds of rights’ guarantees that we’re going to be talking about. But once you do that typology of four or five different kinds of state constitutional individual rights provisions, and once you identify the type that you are dealing with, it’s important to drill down even deeper. Of course, David and Christina would know this. But for example, if you have a clause that reads identically to the federal clause, most often search and seizure, sometimes free speech — but a lot of them are free speech provisions are framed quite differently as affirmative guarantees, not negative—all people may speak and write freely on any subject whatsoever. Holy cow.
David A. Carrillo: Yeah. That’s what California does.
Robert F. Williams: Okay. They have to be responsible for abusing that, so we can still have defamation and that kind of thing. But once you say, “Okay, I’m dealing with something that’s just like the federal clause –” has the US Supreme Court already dealt with a right that you want to assert? And if it has and said no to that—has ruled against the assertion of that right, under the federal Constitution—you’re going to be subject to what I call a shadow—or, sometimes, I call it a glare; I’m not sure what it really is—shown or obstructed on your litigation by the Supreme Court decision. And many state courts—we’ll get to this, I think—say they’re going to interpret clauses like this the same way the US Supreme Court does.
And I think there are two key responses to that, among others. One is, how convincing is the majority opinion? State judges don’t have to follow it. This was a big revelation to state judges 30 or 40 years ago when I first started teaching this stuff. I mean, you could see these women and guys say, “You mean — wait a minute, we can disagree with the US Supreme Court?” And you said, “Yes, if they’ve ruled against federal rights.” You can be above the national standard—above the floor, as Christina said—and be more protective. Often it was thought to be more liberal, but that’s not what the Goldwater Institute is litigating, I don’t think. As Chief Justice Mosk said out in California, “It’s neither liberal nor conservative.” You can think of it as more protective.
So one of the things to think of is, “What does it mean that the US Supreme Court has already ruled against my claim?” Well, it’s under the federal Constitution, and, number one, those decisions can be suspect based on what Judge Sutton calls the federalism discount. United States Supreme Court is sometimes pretty hesitant—not always, but pretty hesitant—to cram a particular rule down the throats of all 50 states. Sometimes they say that in their majority opinion—very important for an advocate who is asking the state supreme court to disagree.
One last point, and then I’ll stop. On these kinds of decisions where, seemingly, the US Supreme Court’s already ruled on the right that you want to assert, there’s a very important rule for dissenting opinions. I mean, we’re all taught in law school, “Well, don’t cite dissenting opinions.” Dissenting opinions are there to speak to the future generations of justices on the court, 30/40 years later. Now, with the new judicial federalism, with the recognition that state courts can interpret their constitution to be more protective, dissenting opinions can be very important two weeks later in a state supreme court. So there’s an additional function to the dissents in a US Supreme Court decision like that that I think advocates should study very carefully. State supreme courts regularly cite US Supreme Court dissents in support of their disagreement with the outcome.
Christina Sandefur: Yeah. I think that’s a great point, Bob, because I think sometimes it comes down to the litigants themselves and what they offer the court. Right? We hear time and time again, state courts paying lip service to what we all know to be true that states are free to interpret their constitutions independently of the federal government. Oftentimes you see that, and then there’s really no explanation as to what that means or even any kind of deep dive into how that might apply in a particular case. And I think sometimes that’s because litigants don’t always conceive of those provisions as being unique or different or having the ability to be interpreted differently, and they just, kind of, assume when they brief the court that those provisions will be interpreted in lockstep.
And an example of widely different interpretations — right around the time that the Kelo case was being handed down—Kelo v. New London—by the US Supreme Court, where you have a state redevelopment agency coming in and taking away private property through the eminent domain power of a whole neighborhood of people — of course, the question then becomes, “Well, what is the public purpose in taking away this property and essentially using it for a redevelopment project that they hoped would benefit the Pfizer Corporation?” And, as we know, the Supreme Court said, in a narrow decision, “Well, the public use there is increased tax revenue, creation of jobs—” the types of things that I said were not acceptable under a state gift clause analysis.
Well, right around that same time, the Arizona courts were hearing a similar case where, in the city of Mesa, which is a suburb of Phoenix, Arizona, there was a family-owned brake shop that had been in existence for a really long time, and the city decided that it would like to get rid of that small brake shop, and it would rather have a redevelopment project, have a hardware store there. So they were going to take that property and then subsidize the hardware store, and our courts looked at the eminent domain power differently. And the same types of justifications were being used— “Well, this will be more tax revenue to the city of Mesa—create more jobs because it’s going to be a bigger store.” And in Arizona, the appellate court said “No, that’s not enough to justify a taking; that isn’t a sufficient public purpose. The public benefit has to be substantially predominant. It has to be something that’s very clear, very direct, and that has to be the main reason, the main result, of the taking.”
So you’ve got two very different interpretations of private property rights there by state and federal court. But then you look at something like — the right to privacy was mentioned. Arizona has a really unique private affairs clause in its constitution. In fact, I think we are the only state that has it except the state of Washington. And it’s framed in more of a positive way—no person’s rights should be disturbed in their private affairs. And it goes on and adds some references to the home and things like that. The Arizona supreme court has said this is worded even a little different than privacy clauses in the US Constitution. It should be interpreted differently. And then, the court really hasn’t done a whole lot with that.
Interestingly, the Washington Supreme Court really has had a lot of cases developing what that means, and it has actually rejected exceptions to the warrant requirement that federal courts have created over the years. But in Arizona, it acknowledges the broader protection, but then the state really hasn’t done a whole lot, except talking about specifically with reference to warrantless searches in homes. It’s deviated a little from federal interpretation.
So it’s interesting because there’s a lot of room for opportunity there, I think, for courts to extend those broader protection of rights. But I think it comes down to the court’s willingness, and I think it also comes down to the litigants’ ability to put forth those arguments in their briefs. So that’s a call to action for everybody on this call.
Braden Boucek: Well, several of you have alluded to it, and I want to echo the sentiment. I think that for anybody who litigates in the state constitutional realm, it can be a source of frustration when you take these claims to federal court, to be told by federal court, for the reasons Bob alluded to—that we’re hesitant to impose a 50-state solution here, and we’re even more hesitant to say what a state constitutional provision means. But then when you take that same claim to state court, and you find the state court just echoing what federal jurisprudence is on the same topic, as if they had no awareness of the fact they’re fully entitled to interpret their constitutions or to interpret a federal constitutional right more broadly. And I think that that’s a sentiment irrespective of one’s political affiliation if you find yourself litigating the realm.
David, you and I talked about that a little bit the last time when we did our last panel.
David A. Carrillo: Yeah. It’s –.
Braden Boucek: Go ahead.
David A. Carrillo: Can I expand on that for a second?
Braden Boucek: Please. Please. Yes.
David A. Carrillo: I think there’s — all of the issues that Bob and Christina just mentioned, those are valid, and I see those happening all the time in California. So I think the meta issue here — it isn’t necessarily whether your state constitution provides a springboard into independent doctrine or not. Frequently, the determining factor is more the willingness or ability of your state court to actually go in that direction. So on some issues—a particular state constitution like California’s, with regard to search and seizure—they might expressly lock to federal law or—and Bob can tell you more about this—some state supreme courts have just prospectively lock stepped all of their state constitutional law to federal laws. So it could be issue-specific, or it could be for your whole state constitution.
California’s a little bit more of a hybrid where sometimes the California Supreme Court will go in a new direction; sometimes they won’t. Sometimes they’ll go in a direction but not even discuss whether they’re expressly relying on federal law or California law. So it can be ambiguous what they’re relying on. So the willingness of your court to actually do what you’re asking them to do, assuming you actually ask for that in the briefs, that frequently can be outcome determinative. And I think Bob has a pretty good 50-state survey he can tell you about that shows that most state courts do simply lock to federal law.
Robert F. Williams: That’s right, David. And it’s changing. And again, it depends on the clause you’re talking about. But there’s a wide instinct to follow what the United States Supreme Court says if it’s interpreting a clause that’s the same or pretty close to the state constitutional clause. And I think Christina’s right; a lot of that has to do with the lawyers who appear in front of the court. It’s beginning at the trial court level. It’s very important not to just wait until one just gets to the state supreme court to make these arguments, to bring them up through the state appeals courts, and to the high court in the state.
And many of the states have developed a jurisprudence, again, that Christina said is given lip service in Arizona. But that’s powerful stuff. We have an — the judges, saying, “We have an obligation to take our state constitution seriously. We took an oath to uphold our state constitution.” So it’s important for advocates to push hard on that and often to strategically—again, depending on the clause and depending how much of the argument has been foreclosed by US Supreme Court—to push very hard on that.
And I think there’s another element of this, and California was a leader in this. Early on, Arizona was, too, but I can’t remember the justice’s name. We, in New Jersey, were leaders, and it’s members of the court who have it within their authority to write individual opinions—either concurring, if they agree with the outcome but want to elaborate on the state constitutional provision or review these earlier statements about the duty of the court to take its state constitution seriously—and off-the-bench writing and speaking.
There was a whole cadre of state supreme court justices in the ‘80s—to some extent led by Stanley Mosk of California. But Robert Utter of Washington, Hans Linde — I could name a lot of them. I’m not going to do that but — who wrote law review articles, who spoke at continuing legal education and continuing judicial education programs, making these points. And then you’ve got to remember the turnover on these courts is fairly regular. And you get people who don’t know a darn thing about the state constitution, who come onto the court, right away they’re writing opinions, and their colleagues will help, but they’re busy. And so, there’s a need for all of these elements to coalesce, in terms of taking the state constitution seriously, regardless if it’s a liberal, progressive argument or a—I think these are not very good categories, frankly—but something that seems more conservative. All of that matters.
Braden Boucek: Yeah. No, that’s great. And I want to block out specific time for Q&A, although I think one of these questions is really, really on point with where the discussion is headed. Steve Twiss (sp) asks, “What are the limiting principles to the interpretation of state constitutional provisions to prevent unrestrained judicial activism? For example, how do we — do we look to public understanding at the time of the adoption? What does that look like? Are state constitutional conventions relevant?”
David A. Carrillo: I actually was just typing an answer to that.
Braden Boucek: I thought that was a good question. Go for it, David.
David A. Carrillo: Yeah, yeah, yeah. So I was sort of answering it going from the end of the question about — and again, I only really know about California. For 50 state stuff, you have to rely on my colleagues here. So speaking of it from the California perspective, I make two points. One is that frameworks for looking at issues like this, like originalism and textualism and things like that, that you ordinarily would apply to analyzing US Supreme Court, they just don’t apply in California for a variety of reasons. But the upshot is that, yes, California courts, their first referent is often to either the debates—we had two constitutional conventions here in California—or if it’s something that made its way into the state constitution through the initiative amendment process, they’ll look to the ballot arguments, legislative history, or other indicia of the drafter’s intent.
So in California — again, I would not use federal frameworks for looking at this kind of stuff. But in California, the initial consideration in the interpretation analysis is what the intent of the drafters was. And you determine that by going back and looking at when it was written. So if it was in the 1849 constitution, you’d look at that convention. Or if it’s something that got enacted on last November’s ballot, you’d look at the ballot arguments or the legislative history, depending on whether it was initiated directly by the voters or by the legislature.
Christina Sandefur: And I think it can be really difficult in a state like Arizona, which — I mean, we’re a relatively young state. Our constitution is just a little over a century old. But for those who have tried to delve into the Arizona constitutional convention, I mean, it’s a mess. The records are terrible. They’re not indexed well. So many things have just been completely lost. So it’s very difficult to do that.
And I think some of the answers to these questions just come down to what your theory of interpretation is, generally. If you’re somebody who sees the role of the states as similar or the same to the federal constitution, in the sense that they’re supposed to be guarantors of liberty and protectors of rights, then you look at things through that framework. I think there’s something to be said for a conceptual originalism. So even if you’re not able to — I mean, you look at the text, but, obviously, things change over time so what did the text mean at the time.
A really interesting thing, though, is that when states adopt their constitutions and copy provisions from the federal constitution, there’s an argument that even as federal courts have evolved in their understanding or interpretation of a federal constitutional provision, maybe it’s right for the state courts to look back to more of the original understanding of where the federal courts were at the time, that the state courts adopted that provision.
So, for example, there are a lot of states that interpret their contracts clauses as being much less permissive against the government. The federal courts have, more or less, written provisions that the contract’s clause—kind of nullified them in saying that, “Well, courts can come in and change contracts and nullify contracts between private parties or even between the government and private parties.”
And not all states have done that. And in fact, some state courts have gone so far as to say that when voters vote on, say, bond issues to allocate money to certain things, that that actually forms a contract, in and of itself, between the voters and the government, and the government can’t deviate and spend that money in other ways. And they look back to more original understandings of the contracts clause before you get into the more progressive era where the court has changed its interpretation.
David A. Carrillo: States also borrowed from each other, in addition to the federal constitution, or from the federal constitution borrowing from the states. So a lot of California’s constitution was borrowed from Iowa and New York. So it’s not uncommon for California Supreme Court to look back at constitutional debates in other states to figure out what they meant when they enacted the provision that we borrowed from them.
Braden Boucek: But I think all the panelists — go ahead, Bob.
Robert F. Williams: Just a couple quick things here. There are really a lot of — you could tell from the both — the two panelists, there are a number of really quite unique judicial interpretation techniques in state constitutional law that are quite unheard of in federal Con law. I mean, how many times does Madison’s notes on the US Constitution really play much of a role? A little bit here and there. I don’t want Christina to scare you away from your own state constitutional records just because —
David A. Carrillo: Yeah, they’re very good in California.
Robert F. Williams: –Arizona has lousy — sorry?
David A. Carrillo: They’re very good in California.
Robert F. Williams: I mean, we, in New Jersey — there are five volumes. They’re online; they’re searchable. No, they don’t give — they’re like legislative history of statutes. They often don’t give you a specific answer. But I had a case once, and I came up with a question, and I went to the University of Pennsylvania Library. There were nine volumes on the 1873 constitutional convention in Pennsylvania. I found the exact answer to — and the Pennsylvania Supreme Court ignored the way I treated it in my brief. But don’t give up on that. It’s something — and particularly when you have — once you have your first case, teach yourself how to use those documents, how to find them, and you’ll have that for the rest of your legal career.
Finally, real quickly, in 49 — Delaware’s the only exception. In all the other 49 states, we vote on our state constitutions, either a revised constitution like you all did in California in ’79, I guess it was –.
David A. Carrillo: It was a constitutional revision, yeah.
Robert F. Williams: Yeah. And we, in New Jersey, 1947. And most state courts, it’s quite fictional. But they say we try to interpret these provisions in light of what the average intelligent voter would have thought they mean. Now, come on. But there’s evidence of that in newspaper editorials. How many federal Con law lawyers would think to look at newspaper editorials the month before people voted on a provision?
David A. Carrillo: I just filed an amicus brief where I listed examples of newspaper articles from 1911. So I spent two weeks reading archive newspaper articles from 1911 so I could explain to the court what the voters meant when they enacted a constitutional provision.
Robert F. Williams: Yeah. So don’t give up on these kind of historical techniques. Of course, the text is important and all that. And of course, state constitutions are layered often. So, like a statute, the original version said this, it was amended at this point in time, then it was later amended. There’s a — not always, but a — not so often with the rights clauses. But there’s just a lot more to them than we know from studying the federal Constitution.
Christina Sandefur: One other thing I would add, just really briefly though, is with reference to the amendment process, where we’re talking about initiatives, some states allow for that amendment process to their constitution. I mean, that can be a real mess when it comes to interpretation, and I think there’s been some questions, too, in the chat just about, is that problematic, in general? I think there are a lot of concerns. In a state like Arizona, it’s very easy to amend the state constitution. I guess that’s true in California, too. I often joke with students at The Federalist Society —
Braden Boucek: Do you have some thoughts about that?
Christina Sandefur: As a pocket constitution, you would not — you’d have to have huge pockets to be able to carry around a copy of the California constitution. Yeah. It’s like a –.
David A. Carrillo: It’s not that big.
Christina Sandefur: It’s pretty –.
Braden Boucek: And he has it on him, ladies and gentlemen.
Christina Sandefur: Yes.
David A. Carrillo: I should.
Robert F. Williams: In his coat pocket.
Christina Sandefur: But when you look at how, relatively, easy it is, say, in a state like Arizona, to amend the constitution — I mean, you get signatures to put something on the ballot. You don’t even have to collect signatures from all the geographic regions of the state of Arizona. So you could spend a little bit of time in Phoenix, a little bit of time in Tucson, ignore what the rest of the state wants, get it on the constitution. It’s a relatively low bar.
You look at the ballot. We’re talking about interpreting what the provisions mean by looking at ballot arguments. Well, such a small portion of the population is even participating in that, and we know there’s enough trouble with looking at legislative intent or even looking at constitutional conventions. These ballot arguments are all over the place. So it’s — I mean, I do think that it is a little concerning, and I think that’s why we see state constitutions start look a little bit more like constitutionalize — something that should actually be statutory, versus really putting into place some structural protections for the protection of rights.
David A. Carrillo: Braden, I hate to take advantage of my Burt Reynolds status, but I think we just developed our topic for the next one of these talks — is to have me and Christina debate the relative values of the initiative process because I will happily defend it.
Christina Sandefur: I love it. Do it.
David A. Carrillo: Bring it on.
Braden Boucek: I love it, too. There’s always a spot for you on my couch, Burt.
David A. Carrillo: Thank you, sir.
Braden Boucek: You’ve just got to wear the red jacket. I think it’s fair to say—to tie up the point—that the interpretive tools in the toolbox are substantively different than the interpretive tools that you have in the federal toolbox, but there’s a whole host of difficulties that are just state-specific. For instance, in Tennessee, our original constitution was enacted in 1796. Tennessee was the Wild West at that point in time. There are no Federalist Papers. There are no Madison notes. There’s almost no written archives to reflect what they were thinking about when they enacted their constitutional provisions.
Christina alluded to anti-monopolies clauses earlier. Tennessee’s got an anti-monopolies clause that’s been in there from 1796, and it says that monopolies and perpetuities are, I think, enemies of a free state and shall not be allowed. “Shall not be allowed” is forceful language, and we got a constitutional provision that has no federal analogue. And, of course, there’s plenty of federal jurisprudence on the constitutionality of a monopoly. So how does one go about interpreting what is and is not a monopoly if there’s not a legislative record?
Well, to Christina’s point, it derives from a North Carolina constitutional law provision. And in fact, there was back and forth between Madison and Jefferson about the inclusion of an anti-monopolies clause in the federal constitution. Jefferson wanted one; Madison nixed it. But you can find, in these sort of out-of-the-way archival sources, relevant and timely discussions to show what would have been understood under the original public meaning, if that’s the interpretive tool that you’re inclined to go with.
But we’ve talked enough about the specific provisions themselves. It’s not just that they contain these distinct substantive provisions. When, how, and why might a state find ways to depart from federal law?
David, do you want to launch that discussion?
David A. Carrillo: Yeah. My perspective on this is that it’s relatively easy for a court to write an opinion departing from federal law, even if there’s identity between the state constitutional provision and the federal analogue. You can just disagree. I read the same words; they mean something different to me, either because I have a different view of the law or because it was enacted in a different time and a different context in my state because the conditions in my state are different. So even for identical analogues, a state court can go in a different direction. And that’s been true in California, in some instances. And, obviously, if you get into things that are textually different, that makes it easier. If you get into things that are unique to your state constitution, it makes it even easier, arguably, mandatory.
I think, referring back to something we were talking about earlier, what’s harder than finding a basis in your state constitution for departing from federal law, is finding the will to do it. And this is where I would reference Bob’s excellent 50 state survey about which states do expressly lock their state constitutional doctrine to federal law, and then it subdivides based on some states do it partially or sometimes or it depends on the issue or it changed over time, like in California for search and seizure things.
So you have some states where they’ve made an express decision to lock to federal law. That makes it for an uphill climb if you’re an advocate arguing for an independent state constitutional provision because the existing law is we just don’t do that in X state. And even in states where the law isn’t expressly locked to federal doctrine, you still may face an uphill climb because it takes some judicial willingness to craft an independent state constitutional doctrine on whatever issue of choice is.
And California is kind of a cautionary tale here because the California supreme court—particularly in the ‘60s, under Chief Justice Rose Bird—did craft some independent state constitutional law that either got rolled back by later iterations of the court or by the voters, or the court has struggled since then to really define the contours of what California’s independent constitutional law on these issues is.
So, unfortunately, this is an area of state constitutional law which I don’t think is very encouraging for advocates. It can be a bit of an uphill climb.
Robert F. Williams: May I just say two quick things about that? One is when a state court says, “We are going to interpret our constitutional clause the same way the US Supreme Court does, now and in the future,” I think advocates should realize that cannot be a binding precedent. How can the court interpret cases it’s never heard in the future? It just doesn’t make sense.
Braden Boucek: Well, and, of course, which version of federal constitutional law are we talking about since it, itself, is in flux at times.
Robert F. Williams: Absolutely, it can vary. That’s right.
David A. Carrillo: Yeah. And that’s an interesting variation on this.
You could have a state supreme court that says —
Robert F. Williams: But be careful –.
David A. Carrillo: — we are following federal constitutional law, and then you read that along with the federal opinion, and they look very different because the state court has just either read it differently or got it wrong or silently interpreted differently while saying that they were doing the same thing as the federal court would do.
Robert F. Williams: That does happen, too, but many people say, “Well, the court’s already decided. It always follows the federal First Amendment doctrine.” I don’t think it can — that can’t be binding on a future court. And, very quickly, some courts have already answered your question. They’ve adopted opinions––I could probably name 10; I’m not going to do it—which have said, “Here’s how you present an argument to convince us to diverge from federal Con law.” And many lawyers miss those cases, and they start from scratch. And they usually include four or five criteria that — does the text read the same? Okay. It does. Oops. What’s next? What’s the constitutional history? You could have something pretty different. And it goes on down to unique state — Colorado said that you can’t have a warrant to search somebody’s tent because Colorado, uniquely, welcomes campers, and stuff that prosecutors hate. But there’s already a template set out in a number of states—here’s how we interpret our constitution. So practitioners need — and judges need to look for those cases.
Christina Sandefur: And David made a good point earlier, when you were talking about the difference in scrutiny. I mean, that can make all the difference, too, right? So you look at a state like California; you mentioned the lack of intermediate scrutiny. Back in the early to mid-20th century, a lot of states had laws affecting women’s ability to work. And there were states that put laws into place that said women can’t be bartenders, for example. And it’s for their own good. It’s because it’s dangerous or it’s immoral. And the US Supreme Court upheld most of those laws at the time and said that these were designed to help women. And at the time, they weren’t, maybe, explicitly talking about the level of scrutiny, but they were, clearly, applying some sort of rational basis or intermediate, eventually, scrutiny.
You get to California, where gender-based discrimination gets strict scrutiny in the state, and California Supreme Court struck down a law in California that said that women couldn’t be bartenders—specifically saying that this is treating women with, I think they said, a stigma of inferiority and second-class citizenship. And so, very different result, even though, I think, everything else was, more or less, the same.
But it’s the weight that you give toward what the government has done and how much you’re deferring to the democratic branches versus protecting someone’s right to liberty. I mean, the California Supreme Court claims that the right to earn a living is a fundamental right. I don’t think they interpret their constitution that way most of the time, but you can still find that in the case law. So what is the degree of protection for the right and then and for the classification that’s created? And that can make all the difference in the outcome.
David A. Carrillo: Braden, could I follow up on that equal protection point?
Braden Boucek: Yeah. Sure.
David A. Carrillo: It’s a really good example of what we’ve been talking about of both how federal and state law can diverge and the somewhat counterintuitive results you can get from that. And I think equal protection in California’s a really good example of that because California equal protection doctrine — since it lacks intermediate scrutiny, everything in equal protection analysis as a practical matter comes down to defining the suspect class, whether it is a suspect class because it’s binary. You either get rational basis, and the statute probably gets upheld, or you get strict scrutiny, and the statute probably gets struck down. So it all comes down to suspect class.
And that was one of the big turning points in same-sex marriage litigation here in California, where, arguably, because of the limitations on California’s equal protection doctrine, the California supreme court found itself painted into a corner and had to upheld California’s initiative ban on same-sex marriage. So you have, supposedly, liberal, blue California using its equal-protection doctrine to rule against same-sex marriage, and then the US Supreme Court going the opposite direction and upholding it. So it’s a very interesting little microcosm of the differences between state and federal law and how differences in interpretation can yield, not just different results, but, arguably, counterintuitive, unexpected results.
Braden Boucek: Bob, are there historical reasons for why, structurally, state constitutional rights were intended to be the primary guarantors of liberty?
Robert F. Williams: Well, of course, the original catalogs or Declarations of Rights were in the state constitutions for that 11 years before the US Constitution was drafted or 13 years before the Bill of Rights was drafted. And then, of course, the Bill of Rights was viewed for, what is it, a century or so, as only limiting the US government. People don’t realize this.
It is interesting. There’s some recent scholarship that shows state courts were applying the federal Constitution anyway. I was quite surprised when I saw this. But the other thing is that the idea of the federal — the reason that it didn’t originally have a Bill of Rights was — the thought was the structure of it would protect rights. And there’s a very important distinction with the state constitutions where the US Constitution enumerates rights, and, yes, it has — I’m sorry, enumerates powers and sets up a seemingly limited federal government, although one never knows.
Braden Boucek: Yeah. How’d that work out?
Robert F. Williams: It moves back and forth a little bit. But the state constitutions don’t enumerate powers. They give all legislative power to the state legislature, except as limited in the US Constitution and limited in the state constitution. So other than the rights clauses, most of what’s in state constitutions is either the entrenchment of policy decisions — people like to make fun of the ski trails in the New York constitution—and all those are there for a reason, by the way. But mainly, what’s operative in state constitutions is why can’t the legislature pass such a law? In federal Con law, we say, “Why can Congress enact such a law?” And often, it is because they feel like it.
So even though state constitutions are called constitutions, they actually have a very different political function, which is basically to limit an otherwise unlimited government. And so, these very different ideas of the state and federal governments, I think, led us for many, many years to think of the states as having the primary function to protect people.
David A. Carrillo: And this is one of the common explanations for why state constitutions tend to be a bit longer and have things in them that look more like legislation, and why isn’t this a statute. Well, we need it in there to limit the legislature. That’s one of the big functions of a state constitution.
Christina Sandefur: I would argue that even though some of the state constitutions predate the federal constitution that, actually, when our federal constitution was written, it really was supposed to be the primary guarantor of liberty. And I think it’s because when you look at when the constitution was written — first of all, it’s a rejection of the Articles of Confederation. Right? The Constitution is not in the lines of states. The Constitution is very specifically written for we the people, and so federal government is retaining these limited powers for the specific purpose to protect rights. And how do we know that? Well, we know that because this country was birthed—was founded—when the Revolutionary War was fought when the Declaration of Independence was adopted. So the Declaration of Independence establishes the United States—as we’re going into the Fourth of July holiday—for the first time in human history as a nation based on the principle that rights do not come from the government, but they’re natural. Government exists for the sole purpose of protecting rights.
And so, I think — now, certainly, the courts have failed in this respect, but I think it was very clear to the founding fathers and to the framers of the Constitution, not just that the Constitution would structurally protect rights, but that, in fact, the Constitution was to be read in the spirit of the Declaration of Independence. And that’s why it was a pretty limited document just laying out the structure of the government because the whole point of that government was that it existed to protect rights.
But, of course, we had to fight a civil war, in large part, over that question. Right? And so, to Bob’s point, we did not see the US Supreme Court applying the Bill of Rights or any type of rights-based framework against the things that the states did until we see the post-civil war amendments. And that’s when we started to see the doctrine of incorporation, rather. And of course, most rights in the Bill of Rights have since been, one by one, incorporated against the states.
But even after the Civil War, every state that got admitted to the Union after the Civil War—I think a lot of people don’t realize—they not only had to offer up a constitution that was consistent with the federal constitution, but they also had offer up a constitution that was consistent with the principles of the Declaration of Independence. And so, I think that is why I really look at the state constitutions — clearly, I work for a federalism organization. I think that they’re extremely important, but I see them more as the last line of defense. I think that the federal Constitution has always been intended to be a guarantor of liberty, and there have been failures there, and so, therefore, the Civil War shifted things and now, functionally — I think it, in theory, functions more that way now.
Braden Boucek: David, do you see partisan sorting affecting any of these considerations?
David A. Carrillo: Yes and no. I think it depends on your point of view. So, one way of looking at partisan sorting is that it’s bad. It makes the country more divided. It enhances other negative trends, and it tends to focus more attention than is necessary on the blue state versus red state divide.
There’s another way of looking at it which tries to take a positive view on it, which is that, in the short term, it can renew focus on state politics. And that’s probably positive. It has federalism-enhancing benefits if the overall result is people renewing their focus on their state constitutions and driving new arguments about expanding state constitutional rights, whatever that particular right happens to be. So in Texas, it could be driving gun rights under your state constitution, or in California, it could be driving abortion rights under our state constitution.
So, in general, focusing on state constitutions, it has potential rights-expanding benefits as potential federalism-enhancing benefits. That’s in the short- and the intermediate-term. But if the long-term — my concern is that the long-term trend is that it could settle into a pattern of a less active federal government and more active states that, essentially, enhance the voting with our feet sorting out pattern. So you wind up with two Americas that largely don’t talk to each other, and I can’t imagine that that would be healthy for the body politic.
Braden Boucek: Excuse me. The time here is — yeah, time is almost up, but –.
David A. Carrillo: I was going to say, it makes me think of what Lincoln said about a house divided not standing —
Braden Boucek: Sure.
David A. Carrillo: — to loop back to Christina’s Civil War reference.
Braden Boucek: Well, Christina, we got to close here. I’m going to give you the final question here. This comes to you from a Jay Riches (sp). But he asks if we’re, perhaps, focusing too much on state constitutions and not enough on alien constitutions. In particular, he wants to know whether or not we should be taking a closer look at science fiction constitutions, and would the fact that you can only be reading in low Vulcan affect your ability to properly interpret the wookiee constitution?
David A. Carrillo: That’s fantastic.
Christina Sandefur: I have been pranked before, but this one, it goes to a whole new level.
David A. Carrillo: That’s amazing.
Christina Sandefur: I very much –.
Braden Boucek: I’m just reading the questions here Christina. Can you please answer?
Christina Sandefur: You know, your honor, could I ask for an additional, I don’t know, four hours of time so that I can address that question?
Braden Boucek: Just tell us. Can we read the wookiee constitution if we only speak low Vulcan?
Christina Sandefur: Hey, look. I’ll tell you what. There isn’t a wookiee constitution, right? We don’t talk about fantasies. Star Wars is all about fantasy. If you want to talk about logic and constitutionalism and freedom and things like that, then we can talk about Star Trek. And then I’d be happy to go through and explain all that to you.
Braden Boucek: I’m sure David and Robert would be delighted to join us in your exposé.
Christina Sandefur: I’m sure they would.
Robert F. Williams: Wait until I tell my wife that was one of the last questions.
Christina Sandefur: Is she a Star Wars or Star Trek fan?
Robert F. Williams: Neither.
Christina Sandefur: Ohhh.
Braden Boucek: Go for it, Christina.
Robert F. Williams: I think she would know what the wookiee constitution might mean, but . . .
Braden Boucek: Go for it, Christina. Unload.
Christina Sandefur: I think we don’t have the time or the interest to be able to get into that, Braden. In fact, I’m looking at the participant level just… [hand motions going down].
Braden Boucek: Well, okay. This has been — the hour’s up. Jack, I’m going to hand it back to you now. But I really appreciate everyone’s time here.
Jack Derwin: Can’t thank you all enough for taking the time for this. That was a fantastic discussion, and I only wish we had more time for wookiee questions and otherwise. And thank you so much to our audience for tuning in, as well. You can check out our website at regproject.org or follow us on any of the major social media platforms @fedsocrtp to stay up to date. Thank you so much.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.
This has been a FedSoc audio production.
Lecturer in Residence and Executive Director, California Constitution Center
University of California, Berkeley, School of Law
Executive Vice President
Distinguished Professor of Law and Director, Center for State Constitutional Studies
Rutgers University of School of Law
Director of Litigation
Southeastern Legal Foundation