Bolch Judicial Institute | 51 Imperfect Solutions: A Judicial Roundtable
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Bolch Judicial Institute | 51 Imperfect Solutions: A Judicial Roundtable

Well, welcome everybody. I’m David Levi, and this
is a Bolch Institute meeting or event. And we’re so happy to
have Jeff Sutton here. He’s written a book called
51 Imperfect Solutions. There’s been a bit of debate
about what that 51st number is, but he’ll clarify that I’m sure. And for the talk about all
these imperfect solutions, we have absolutely the
perfect panel here. And before we begin,
I want to acknowledge that Mark Martin who is the
Chief Justice of North Carolina is here and our very
distinguished colleague of Walter Dellinger
who was the Solicitor General during the
Clinton administration. So this is a great book. And what we’re going to do,
we’ll just go right into it. So Jeff Sutton is
on the Sixth Circuit and a very distinguished judge. And next to him is a
colleague Joan Larsen who was also on the 6th circuit. And before she was
chambers in Detroit. But before she went
on the 6th circuit, she was on the
Michigan Supreme Court. And then to my left
here is Allison Eid, who is on the Tenth Circuit
with Chambers in Denver. And before she went
on the Tenth Circuit, she was a state Supreme
Court justice in Colorado. And then to my far
left is Goodwin Liu, the most distinguished Supreme
Court judge on the California Supreme Court. Goodwin was a law
professor at UC Berkeley, Allison was a law professor
at the University of Colorado, and Joan was a law professor
at the University of Michigan. And yet, they’re here to
talk about a book written by a guy who is not
an academic, and– Most definitely not. Most definitely not. Very impressive,
but very daring. OK, take it away. Well, first of all,
thank you, David. Thank you to the
Bolch Institute. Thank you to Duke. When you write a book, you
learn who your friends are. So thank you friends. I really appreciate
this, and I’m really thrilled to be here my friends,
Joan, Allison, and Goodwin. So why write a book on
state constitutions? Well, if you were to go
to the Duke Law Library and pull all the
books on, quote, constitutional law off the shelf
or go to the class taught here on con law, you would see
that it teaches and tells half the story. The focus in con law books
in America circuit 2000 is on the US Supreme Court
and the US Constitution rarely mentioning– if
mentioning it all, state constitutions or state courts. That seemed like
a gap worth film. The second reason
for writing the book was that our
stories, the stories we tell ourselves about con law
usually follow this narrative. And in fact, for
the students, this is really all you need
to know to pass the bar exam on the federal
common law questions– states villains, good
guys US Supreme Court. If you got that
right, you’re going to get every answer
correct, because that is the basic narrative in
federal constitutional law. Now, sadly, in American
history, there’s quite a bit of support
for that narrative. The chapter Jim Crow
being the best example being brought to an end
happily by Brown vs. Board of Education, US
Supreme Court decision. So I didn’t set out to
contradict that narrative. I did think it might
be worth supplementing that narrative with
stories in which state courts either were the heroes– there’s one story
Buck versus Bell where the heroes are clearly
the state courts, the villain the US Supreme Court– and some other stories
where it’s actually really complicated as to who
the hero and who the villain is. And it’s really not even
appropriate to think about it that way. It’s really appropriate
to think about it as a dialogue between
state and federal courts, as they slowly make their way
to a settling of the issue if a settling is how
it’s going to end. The third reason
for writing the book gets to the federal
judge side of me. I’m very nervous about
the path the US Supreme Court is on in this country. I graduated from
law school in 1990. As I’ve watched the Supreme
Court both as a practitioner, a law clerk, and now a junior
varsity appellate judge, I’ve seen a court
that’s basically is in a rights escalation mode. You get your rights. We get our rights– blue
rights here, red rights there, escalation up, up, up. Now in one sense as a federal
judge, I should love that path, and I should want
us to stay on it. Why? Because it means
we federal judges are exercising more power. If you have a government
job, more power is usually better
than less power. So I should love
the path we’re on. I should want us to stay on it. But for one small
minor problem– it’s getting very
hard for we Americans to decide who should be on that
all powerful US Supreme Court. Unless you’ve been hiding
under a rock the last few years and especially the
last few months, you might have
noticed that Americans care intensely about who is
on this US Supreme Court, as well they should. That court is
exercising an awful lot of power over our
lives, and I think it’s actually quite
reasonable for them to behave the way they
have been behaving in making these decisions
about who is on that court. So what I’m quite worried
about with the path we’re on at the federal level is
that it will end in tears. It will end either with the
American people not respecting this great treasure of American
government or our being unwilling to fill the
seats on the court, putting them in a position where
they really can’t do their job. So how do you get
off of that path– path A I’ll call it? Path B is some kind of detente– some kind of situation
where the court is not running, but basically
running too many of the issues in American society. How do you get people to
engage in that detente, since we Americans live
in a country that probably is the country in world
history that believes the most in judicially
enforceable rights and prizes those rights the most? It’s a very hard path
for us to get off of. Well, my idea– perhaps,
dreamy, maybe even delusional– is that we can look to
the 50 state courts, the 50 state constitutions
as another way of thinking about what our
individual liberties, property rights happened to be. And one oddity about American
constitutional law circa 2018 is we started the whole
thing in the reverse. All of our constitutional
guarantees, the rights guarantees originated
in the state constitutions. Indeed, the greatest
era of constitution writing in this country,
indeed, in the world according to Gordon
Wood is between 1776 and before the fabled summer
of 1787 in Philadelphia. The Philadelphia Convention
was a cut and paste job and same thing with
the Bill of Rights. They were cutting and
pasting from the rights that were already been adopted in
the state constitution, authored there, and picking
which ones to choose from which language to use
for the federal constitution. How ironic that we live in a
world where all we think about, obsess about is the
US Constitution’s individual rights and the US
Supreme Court’s interpretation of them when they all originated
in state constitutions and remain separately,
independently enforceable by
state high courts. So the point is we’ve got
51 high courts, including the US Supreme Court, 51
sets of constitutions. My last point here before I turn
it over to my colleagues is– and it’s very hard
in this day and age to find agreement about a
political science policy point in America, but
I’m pretty confident we could get everyone in
the Duke law school together and get agreement
on this one insight. And it’s the Brandeis
insight about the greatest virtue of American federalism. And that virtue is
that a brave state can deal with a new problem
with this experiment or that experiment, and
we have 50 laboratories of experimentation, policy
making experimentation through those state labs. You can have trial and error
here, trial and error there. The results come in. Another state can
adopt what’s been done. Maybe we end up with
several regional approaches, or maybe after all
the evidence comes in, we nationalize one
approach to the issue. And what Brandeis
was referring to in terms of policy-making
labs was state legislatures as the policy-making incubators. The whole premise of the book
and all I am saying today can be reduced to
central point– if we can all agree that,
that makes perfect sense with legislative
policy-making, why in the world are we not doing
exactly the same thing by treating the state high
courts as laboratories of constitutional
interpretation, since every one of
the guarantees we care so much about we fight
so intensely about is protected in
one way or another in these 50 state constitutions? Why aren’t we doing
the exact same approach with constitutional
interpretation that we do with run of
the mill policy making. Let the state courts
using state constitutions be the first responders. If regional differentiation
happens, all for the better. That’s called a free
market of ideas. The US Supreme Court can
watch that experiment unfold. Sometimes it will decide
to nationalize one approach to the issue. Sometimes it will not. Sometimes it will
decide to stay. We’re going to allow
some regional disparities to persist, because
we either think the US Constitution
doesn’t speak to it, or because there really
isn’t one good answer. And that’s the
point of the title. Why are we insisting so often on
picking one imperfect solution to individual rights in a world
in which we have the option of 51 imperfect solutions. If you have 51
imperfect solutions, a bunch of imperfect solutions,
it makes very little sense from my perspective
to pick one of them, nationalize it, and
make everybody live under it, whether it
really is the best idea or for that matter,
a perfect idea. So that’s a great way to start. Can everybody hear? Can you hear? It might– if the control
room is listening, maybe just dial it
up a little bit. Or look toward David. Or look toward me
or read my lips. Before we turn it
over, could you– could you just take
a moment to talk about the structure of the
book and the four areas that you focus on. Yes, thank you. Again, when you write a
book, you need friends. I have a friend. We have the book, by the way. It will be available afterwards. So one– there
are four chapters. There are four
substantive chapters. And one is the Buck
vs. Bell story. You all know that story. Three generations of
imbeciles are enough. It’s arguably the most infamous
US Supreme Court decision– surprisingly, still good law. The part of that
story no one knows is that the state courts
invalidated several state eugenics laws. Many of them use state
constitutions to do that. Of course, that’s not
a story that’s told. That’s not a story
that’s in the literature. So it really is a story where
the villain is the US Supreme Court. The heroes of that
story are state courts, state constitutions,
and state legislatures. Another story that’s a
little more complicated but everyone understands is
the school’s funding story. In 1973, in a case
called Rodriguez– it’s March of ’73, it’s
two months after Roe– this is a US Supreme Court
still willing to innovate with new constitutional rights. Still in a case with some
very serious equities, the court decides not to
use the 14th Amendment’s equal protection clause
to do some equalizing between rich and poor
school districts. The stakes of that
case could not have been harder–
or higher, excuse me. It really is the
bookend case to Brown. Brown gets rid of
racial barriers through a decent
public education. An issue in Rodriguez
fundamentally is whether we are going to get
rid of wealth-based barriers to a good public education. The US Supreme Court says,
no, in a 5-4 decision. And what’s fascinating is since
1973, 2/3 to 3/4 of the states have used their
state constitutions to try to equalize the
educational opportunities between and among rich
and poor school districts in their states. And part of that
story, I would say is also a state
legislative story. Another story is the
Mapp vs. Ohio story. The very provocative
question there is whether criminal defendants
lost by winning Mapp. That’s a very provocative point. It’s an unprovable point,
as the chapter reveals. But it shows how complicated
it is when the US Supreme Court has to make a decision
whether to nationalize a right. It usually takes
with its state courts construing their
state constitutions, and sometimes that
baseline, which gets good for criminal
defendants in Mapp vs. Ohio, can go down over time. And unfortunately,
state courts often follow that downward path. The key thing is Mapp takes
over control of the issue, and the question is whether
that was really good for the cause of criminal
procedure, criminal liberty protections. The last chapter is
about the Barnet, Gobitis story, the
compelled flag salute case. And the part of that
story that I think shows how complicated this really is,
is the message from that story is that frankly the federal
judges and the state court judges fell on the job. Neither one performed
very well, whether it’s good Gobitis at the
US Supreme Court or the state court, state
constitutional decisions during that early era. Happily, even before Barnet, you
get several brave state court judges using their
state constitutions to protect the rights
of Jehovah’s Witnesses not to have to salute the flag
in violation of their faith. So those are the four
chapters, and then at the end I’ve got a little
bit of stuff that pulls in what I see as the
federal US Supreme Court problem, which is,
fundamentally, we’re just asking too much of them. I frankly don’t
blame the US Supreme Court for what it’s worth. By the way, if you’re
listening, I report to you. I’m not blaming you. In all truth, I blame us. This is our fault.
We are the ones that keep wanting them to
nationalize these victories and, shockingly, get so
resentful when we sometimes lose. You’re not going
to win them all. If you want to go down the
road of the US Supreme Court running the country
when it comes to rights, you’re going to win some and
you’re going to lose some. That is the way
it’s going to be, and I’m not sure that
winner take all high stakes approach is really what is good
for us or good for the country. You put a lot of
themes on the table. That’s really great. Goodwin. Well, great. Thank you so much, David. It’s a pleasure to be here with
you and Judge Larsen, Judge Eid, and of course, Jeff. I’ve known Jeff for a number
of years, been a long admirer. I was telling a
non-law friend of mine that I was going to be a
Duke to do a panel with Jeff Sutton, and my
friends, oh, didn’t he just get sacked as Attorney
General the other day? The guy I’m talking
about has life tenure at least during times
of good behavior. So I cleared that up. So Jeff has written
a great book, and those of you who haven’t
had a chance to read yet should definitely read it. What I want to do is
make some comments that situate his book
within the discussion about judicial
federalism more broadly and then, sort of, extend
his thesis even more with a little vignette
about Jim Crow and Brown. So the genre of
federal judges writing about state constitutions
is a pretty limited genre. But he has– but he
has very good company, because many of you know that
Justice William Brennan in 1977 wrote a very seminal article,
one of the most cited law review articles of all time– only 16 pages long, by the way. Those of you who are law
review editors, take note– that argued that– was really
a call for state courts to step up and make individual
rights decisions independently under their own state
constitutions in the face of what Justice Brennan
saw as a retreat by the post-war in court on many
issues of individual rights. And so this article
definitely had you might say a valence to it. Brennan was a judicial liberal,
and he was trying to maximize, in a sense, individual
rights protections, and this was his, sort
of, strategy for doing so. And the article cites
some three dozen or so US Supreme Court
opinions in which he dissented, and he said state
courts should look anew at these issues under
their state constitutions. And by the way, I wrote
dissents in all of them. So Jeff’s book– Jeff is not someone
who you would describe as judicial liberal–
not in the Brennan sense or not in any sense. And so what is his book
doing then in the same, kind of, shelf in a sense
as the Brennan thesis? Well, here I think
it’s important to see the ways in which what
Jeff is talking about, sort of, extends and
complicates the picture that Brennan left with us. So Brennan was,
sort of, thinking about state constitutionalism
as a second best corrective, right, for mistakes,
in his view, made by the US Supreme Court. But in his– Brennan’s– ideal world, the US
Supreme Court would have gotten all this right to begin with,
and the states are really, in his view, kind of like
back-filling where the US Supreme Court is falling down. Jeff has a very
different conception, which I think is a very
more historically accurate conception, and that
is that, first of all, he questions the basic
thesis about where– if you are an individual
rights maximalist– and by the way, you could
be liberal or conservative on that. It doesn’t really matter– but where would
you go to maximize your individual rights? I think his chapters
on school funding and on the exclusionary
rule are very provocative in that
respect, because he asks the question are
we really better off in the Mapp context,
the exclusionary role that the US Supreme Court
has stepped in so heavily in micromanaging in a sense
every aspect of police behavior instead of leaving
some of that up to the states and in the school
funding contexts asking was the Supreme Court not
correct to leave that issue up to the states? And did we get more out of
the Supreme Court doing less? Second thing is that even in
areas where the US Supreme Court, ultimately,
will decide the issue, State constitutionalism is a
way of pacing doctrinal change. So it’s not that rights
advocates should simply, as is often said in the movies,
take your case all the way up to the Supreme Court. That is sometimes too much too
soon, and there is a, kind of, percolation that is necessary
of arguments and experiences through the federal
system that can inform, ultimately, a rights decision
by the US Supreme Court. And so state
constitutions and states courts serve that
function as well. And the third thing I think that
really comes out in the book is that this is not as
Justice Brennan imagined it a politically liberal device. So we can talk about all
the usual individual rights guarantees that Brennan
wanted to talk about, but we can also talk about
things like gun rights. We can talk about
the reaction to Kelo. We can talk about the
more stringent scrutiny that some state courts have
given to economic due process rights. There are all kinds of ways in
which the valence of that issue can skew more
conservative, more liberal, and it need not be
one or the other. And so I think Jeff
provides a, kind of, nice balance to help us see the
ways in which this is really a strong feature of our
constitutional system rather than just, as
Brennan imagined it, a one way liberal ratchet. OK, so I think that, that
has been a very significant contribution to
our understanding about judicial federalism. I want to just say a word
now about state constitutions and get into the– open up a topic
for four more of us to discuss about how
state constitutions are supposed to be read. Now that we say that
there ought to be some kind of state
constitutionalism, how should it be done? In order to understand
this, I think, you have to understand the
nature of state constitutions, which I’ve come to
understand a whole lot better in my current role. I think of state constitutions
as having, kind of, four types– at least four types
of provisions in them. State constitutions, many
of them, most of them, are quite lengthy, and
they’re larded in a sense with many provisions that are,
as one observer has called it, really just legislation
dressed in constitutional garb. So these are not the
high vision structure of government and individual
rights guarantees. These are things like– and
I’ll read you a couple of them– these are things like Alabama’s
amendment 491 section 1, which promotes the sale of catfish. They are– the one
I like the most– is Florida constitution
article 10, section 21 titled– I kid you not– limiting cruel and inhumane
confinement of pigs during pregnancy. So we see stuff like that
in state constitutions, and they do get
stature in the sense that in the hierarchy of
laws, they are the highest law and so you have to apply
them in the usual way. But that’s not what
we really think about when John
Marshall was saying it’s a Constitution
we’re expounding. He wasn’t talking about
pigs during pregnancy. So the second type
of provision that you might find state constitutions
are really, sort of, rights or structure specific– rights or structure provisions
that are specific to the state. And by this, I’ll give
a couple examples. California, for example,
in our constitution has an express privacy provision
among the inalienable rights enumerated in our
constitution is privacy, and that’s just
a different thing than the federal constitution. And there is doctrine built
on that language in the state constitution. Another feature is
that in California we don’t have a unitary executive. We have elected offices
for Attorney General separate from that of Governor
as well as other executive functions, and so this– so we live with that, sort
of, constitutional structure. In those areas, of
course, state courts need to be attentive
to the particular state texts and histories that
define these very state specific provisions. A third kind are provisions
that are similarly worded to federal guarantees, but
despite their similar wording have very distinctive
state histories. So one example of this would
be the jury trial guarantee. The Sixth Amendment has
a jury trial guarantee. We’re all familiar with it. The Supreme Court in Duncan
vs. Louisiana in 1968 held that, that jury
trial guarantee does not extend to petty offenses, many
misdemeanors, petty offenses. The Maine Supreme
Court in 1974 said that the very similarly
worded jury trial guarantee in the
Maine constitution does extend to petty
offenses and did a very elaborate job of
tracing the particular history of that provision as it
exists in Massachusetts, which used to encompass
Maine, and showed that despite the federal
cutting and pasting of that provision, the original
provision that it adopted did apply to petty offenses. So you sometimes
get some of those. But the fourth
category is the one that I’m most
interested in, which are those provisions
of state constitutions that tend to mirror
the federal and don’t have any particular
state specific meaning. And actually, the balance
of Jeff’s book, most of it, concerns provisions of this type
where state and federal courts are essentially construing
the same thing, the same– if not the exact same language,
the same constitutional concept. And why, you might ask, cop does
our constitutional structure contemplate this, kind
of, redundancy, right, in interpretive exercise? Why two bites at the
same constitutional apple in a sense? And I think that this–
understanding this question is very central to understanding
the role of state constitutionalism in
our overall structure, because that really
is, in my view, the way in which state and
federal courts are brought into conversation about
our most important rights– the most important
rights we have. If state decisions were siloed
by their specific history, they could be
distinguished away. They wouldn’t necessarily
need to inform the federal constitution. But it’s precisely because
in areas like– just take– I mean, to take some
obvious examples– the same sex marriage
decisions, the Goodrich decision all the way up to Obergefell. The state and federal
courts were largely talking about the same thing. It was when our Supreme
Court in California in 2008 issued its marriage decisions
interpreting the California equal protection clause. There wasn’t an equal protection
concept that was Californian. We were talking about the
same equal protection concept that everyone is talking about,
but we interpreted differently. And that decision than
informed others in the state courts and the federal. I want to leave– I want to end with just
one further illustration of this dynamic that I think
Jeff’s book illustrates so well, and it really
takes on the one bugaboo that Jeff began with as
to thinking about why it is that we so
disfavor state courts and prefer the federal when
it comes to individual rights protection. And that is the narrative of
Jim Crow on the road Brown. So I think many
people who have read Plessy know that one of
the principle authorities upon which Plessy relied– Plessy was a case about
rail cars, you remember– but one of the principle
authorities upon which relied was a Massachusetts
high court decision called the Roberts
decision, which was the school desegregation–
school segregation decision upholding the
separate but equal standard. It was written by Chief Justice
Lemuel Sha, one of the greatest jurists of his time. And that cemented in a way the
separate but equal principle. What is lesser
known, however, is that despite Plessy
and despite Roberts, between the period from
about mid 1800s to 1900, there were several dozen
state court decisions about school segregation,
more than half of which granted relief to
the black plaintiffs, largely on state constitutional
or statutory grounds within the confines of Plessy. And then during the
same period, there are about 10 reported federal
decisions, five granted relief. So state courts did not fare
badly during that period. And many of you in
constitutional law from your textbooks will
learn the progression of the road to Brown starting
with the higher education cases– one from Missouri which led
to another one in Oklahoma then Texas and the rest. What is lesser known as that
prior to the Missouri decision, the very first NAACP victory
in a higher education case occurred in the
state of Maryland. One of the first cases Thurgood
Marshall litigated in a case called Pearson vs. Murray in
which the Maryland high court ordered the integration of
the University of Maryland Law School for having denied
admission to a very qualified black plaintiff. In the Pearson vs.
Murray decision was the central precedent
that the US Supreme Court then relied on in the Missouri case
in 1938, which then became the pillar of the
Sweatt vs. Painter and other cases
that led to Brown. Last data point,
Brown, you remember, was actually four
consolidated cases– one from South Carolina,
one from Virginia, Kansas, of course, was the
lead case, Brown, and then one from Delaware. The Kansas, South Carolina,
and Virginia cases all came from federal
district courts. All three of those cases denied
relief to the black plaintiffs, though, finding that the schools
were separate and unequal defer to remedy or essentially
ordered a remedy that was an equalization remedy and
said to the black plaintiffs, well, you’ll have
to wait and see. You’ll have to wait
for the facilities to, kind of, catch up. In the Delaware case, that
case went to state court. And Chancellor Collins
Seitz at the state– at the trial court level
visited the schools and rendered a holding that the schools
were unequal and segregated, and that the segregation– the end of the inequality could
not be remedied immediately, and thus ordered the
desegregation of the schools. And that decision was upheld
by the Delaware Supreme Court. And so finally in 1955,
when the US Supreme Court rendered its disposition
in the Brown cases, reversed the three
federal district courts and affirmed the one
state high court. I think that alone
should give us pause in thinking about
who are the heroes and who are the villains in our
conventional story about state courts and federal courts. And there’s much more
to say about that. But I’ll stop right there. Joan. So I will probably touch on a
few things that have already been touched on, but
I’m going to make it a little more– maybe a
little more practical. So one of the things that Judge
Sutton talks about in his book is he, sort of, laments
the fact that litigants don’t take their two free
throws to use his example and come up to the line. And you have two free throws,
and you only take one. Well, why would you do that? Any Duke fan should know
that you shouldn’t do that, especially if you’re
playing Michigan. But you should take both
of your free throws– one being your shot at the
federal constitutional bucket and the other being
the shot at the state constitutional bucket. And he says if you
ask any state judge, they will probably tell
you that people often don’t take the second shot. And from my experience,
that is definitely true. If we got arguments based
on the Michigan constitution aside from the provisions
that were unique to Michigan, it would usually go something
like here are all my arguments about why I should win on
the federal constitution. Oh, and if you don’t
buy that, then just find that I win on
the state constitution but with no reasoning about why
the state constitution might be different. So it’s easy to, sort of,
blame the lawyers, I guess. But I think about this,
and I think, well, if I were a lawyer arguing
a case or if I were a judge and it had been seriously
presented to me, what tools would I use to
figure out how the Michigan constitution differs? And there I largely
come up empty. Now that’s not always
going to be the case. So in Michigan, we had a case– I can’t– I wasn’t on
the court at the time– but we had a case a year
before the Kelo decision called Hathcock. So without guidance from
the US Supreme Court, the Michigan Supreme
Court had to decide the meaning of public use
under our takings clause. The Michigan Supreme
Court decided that you could not tear
down people’s homes in order to put up a shopping mall. That that was not a public use. The US Supreme Court the year
after that cited the decision and said, thanks
for your advice, but we’re not going
to go that way. So sometimes it
does work that there are tools that you
can use to trace back what’s the original
meaning of public use. But often that
won’t be the case. So if you think about
the traditional tools of constitutional
interpretation– we talk about text,
we talk about history, and we talk about President– many of the text at
least in the one category that jut Justice
Liu talked about, the texts are going
to be the same. So the federal constitution
borrowed those provisions from the pre-existing states,
and then the new states borrowed those either from
the federal constitution or from their older
state siblings. And if you’re borrowing
the exact language, there’s a pretty good likelihood
that you wanted the words to mean the same thing. Otherwise, why wouldn’t you
have used different words? So it is often
the case, I think, that people meant the words
to mean the same thing. Now it could be that
either the state courts or the federal
courts at some point took the wrong path, right. They started to interpret
those words that shared a common meaning the wrong way. And their state courts could
be a corrective but, of course, only in one direction, right. So because of the
Supremacy Clause, states can never
guarantee fewer rights. They can only be more generous. But as Judge Sutton
points out in his book, the whole reason for the US
Supreme Court incorporating many of the federal bill of
rights against the states was that the states
were not sufficiently protective of individual rights. And so what is the likelihood
that when you’re a state judge and you’re interpreting
a provision that is worded the same as
the federal constitution, you had a history, but
your history was probably under protective of the right? That’s why it was incorporated
in the first place. And so the chances that when
you have an identically worded provision, you’re going to
come up with something where the states can do something
different than the Federal government, seems to me
like those chances are slim. Now there will be– there
will certainly be cases. I think Kelo is an example. The petty crime example
that Justice Liu gave under the Sixth
Amendment is an example. But I don’t think
there will be that many under the traditional tools of
constitutional interpretation. Now some of you in the
room might be saying, well, I don’t like
those traditional tools. I’m not into text, and
I’m not into history. I’m not an originalist. I’m a living constitutionalist. And so there, there’s a
lot of space for judges to be more protective. And truly there is. But I also think we need to
think a little bit about ways in which state
constitutions differ from the federal
constitution in terms of the interpretive question. So two of the big pillars
of living constitutionalism as a theory is– are that the federal
constitution is really, really old and the federal constitution
is nearly impossible to amend. And given those two
things, what we need is we need the judges to
be able to make sure that the Constitution can keep
up with an evolving society. Now that is true with respect
to some state constitutions. So I believe Massachusetts
is the oldest– has the oldest constitution that
is still operating in the world today. I think it was 1780, perhaps. But that’s obviously not
true of all of our states. We have two states that
came into the union in 1959. We also have states much more
likely to go into convention. So Georgia was the fourth
state admitted to the Union, but it also has, I believe,
the newest constitution adopted in the 1980s. So states are much more likely– Michigan, Michigan’s
constitution is from the middle
of the 1960s– states are much more likely
to convene and convention and update their constitution
through democratic means. Many states– about
half the states also have the ability to
amend their constitutions through direct
democracy, and that’s how you get to the pregnant
pig provisions of the Georgia Constitution. And so if you have the
ability to do things like that to amend your
constitution through the ballot process, which is not
something you can obviously do with the federal,
it makes me wonder whether state judges should
think a little bit differently about their role than
federal judges do, even those who ascribe to
the living Constitution. So those are my thoughts about
the interpretive question, and I’ll turn it
over to Judge Eid. Well, thank you so much
for having me here. I was going to say Dean Levi–
make it former Dean Levi. And it’s just been great
to be here with you all. This is such a great panel. And thank you all for coming. I can’t believe how many
have turned out for a state constitutional law talk. So thank you for your interest. I just want to, kind
of, take up where you left off, because Colorado
is an initiative state. I don’t know if any of
you have been following. We have amended our
constitution 150 plus times. We love state constitutional
law in Colorado. And so we are really one
of the super active states on the constitutional front. And I just want to
start by really thanking Judge Sutton for bringing this
topic to everybody’s attention. Because I do think
it’s very important if you’re from Colorado. I also just wanted to say that
has consequences for you all. I’m going to tell
my cautionary tale. I think Judge Sutton
has heard this. I hired a wonderful intern. This person is not from Duke. But this person
got an assignment to research something,
write a memo, came back, and presented
their 30 page memo to me. And I looked at it and
thought, oh, no, they didn’t check the state
constitution, which we had just passed a very lengthy
constitutional amendment on this topic, and this
person hadn’t cited at all. And so it changes the
dynamic of how you do work– at least in Colorado. You’ve got to check
the Constitution first. And I think that’s exactly
what you’re talking about? There are things in the
Colorado Constitution you wouldn’t
imagine, but you need to look at it in
one of these very active constitutional states. My favorite provision–
we don’t have– I don’t think we
have [INAUDIBLE],, but we do have a
constitutional provision banning public funding
for the 1976 Olympics. Because the state just did
not want the Olympics to come. We didn’t want people
to move to Colorado or even see Colorado, because
when you come, you stay, right. And so literally, we have
a provision banning funding for the ’76, and shockingly,
the ’76 Olympics did not come to Colorado, and we
have not had them since. But I use that as
an example just so get a flavor
of how many things are in the Constitution
in Colorado and how robust the state
constitutional conversation in Colorado. So today this book, and I
think this, as you point out, is really focused on those
provisions that are parallel where you have a state
constitutional provision and a federal counterpart
in that discussion. But I just wanted to say
when you go to Colorado and you talk about state
constitutional law, you’re not talking about that. You’re having a discussion today
about what happened Tuesday with all of our constitutional
ballot initiatives. So just– it’s a
different topic. All right, the second point,
I think, just picking up on Judge Larsen’s point is– well, I’ll start
with chapter seven of the book, which is entitled
what state court judges can do. And of course, I’m not
going to like that chapter as a former state
court judge, right. And I think the book puts a
lot of emphasis on what state court judges can do. And I pushed back a
little bit on that, because I just have to
say we on a state court– I shouldn’t say we,
but on my former gig, state court judges do exactly
what federal court judges. You look at text and history,
and I’ll just read our standard from the Colorado
Supreme Court in a case called here Curious Theater
Company vs. Department of Health. And I didn’t write
this case, but I was on the court so at
the time enjoyed it. And I’ll just read this passage. To this court is
the final arbiter of the meaning of the
Colorado Constitution. Oh, really? And as such, it is
certainly within it’s power to determine that the
state constitution places restrictions on legislative
action even greater than those imposed by
the federal constitution. And then we go on
and say, we have, however, generally declined to
construe the state constitution as imposing such greater
restrictions in the of textual differences,
some local circumstance, or historical justification. And that’s– I read that just
because that is the standard. It’s a pretty high burden. The court goes on to say
you can’t just come in and say the Supreme
Court is wrong. You’ve got to come up with
some reason, some justification for the Colorado Supreme
Court to look at the state constitution differently than
the federal constitution. And I just put that out
there, because that’s the argument you
all when you go out and practice will have to make. And that’s a burden. That’s work that you
all will have to do. We’re– as judges, we
look at those arguments, but you all have to make them. We don’t make the arguments,
just, kind of, sue sponte. So I just call that out. I read that. It’s a tough burden,
I think, to me. Great. Well, do you want– you want to take a little
time to address anything. I don’t think you were
wounded too terribly, but how are you feeling? No, I mean– no. We love the book. We loved the book. Yeah, everybody loves the book. We love state courts. We love death. We can’t just get up– Yeah. No, I want to say I think– I think I should be
a state court judge. I think you guys correctly
left the state courts, and I should go to state court. Yeah, there you go. I think what we should do– you’d have to be elected. That’s all right. Have you have you not watched? I can do this. I am very good at persuading
people to do what I want. I want to say to Justice Liu
that we’re in North Carolina, so a provision about pigs
in a state constitution is obviously important. I thought it’s the Charlotte’s
Web provision, right. You got to protect the pigs. Has anybody read the
Magna Carta recently? It is full of all kinds
of interesting things. You’ll be reading about how much
cloth can be sold at this port and board at this port
and who can sell cloth, and then it’ll say, oh, you
can’t be convicted of a crime without the unanimous
verdict of 12 jurors. Then it’ll go back to
protecting pigs in Alabama or something like that. And so there’s a tendency
in these documents to, kind of, go gander. Yeah. You may have a few
things you want to say. Let me just say a couple
of really quick things, because I do want to
hear from you guys. Questions are great,
because then you know at least one
person is listening. 15 minute assignment–
unenforceable, but it’ll be worth it. Just go to the read
the state constitution of the state in which
you plan to practice law. Don’t read the whole thing. They’re very long. Just go to the individual
rights section. You will be blown away– I don’t care what state it is– you will be blown away at how
often the language varies, different words,
different temptations. They are not monolithic. That is the assumption. Just read. There’s no point
talking about it. Just read it. This will hit you hard
here in North Carolina, but it is true that American
basketball players are smarter than American lawyers. Utah vs. Strieff, very
important Fourth Amendment case from a couple of years ago. State prosecution,
Strieff’s lawyer– a very good lawyer by the way– raised only the federal
constitutional claim– actually won in the
state supreme court. Tom Lee wrote the decision,
5-0 decision for Strieff. Gets reversed at the
US Supreme Court. Strieff now sits in jail,
because his lawyer did not know about the state
constitutional guarantee. I can assure you at
least three members of that court would have
ruled for Strieff on the state constitutional ground. The phrase is the same
on reasonable searches and seizures. Judge Larsen, Judge Eid might
be right that a lot of states want to lock step
their way through life. They’re free to do it. It’s a big country. We have 50 states. We can have two lock
stepping states if we want. As an Ohioan, I don’t mind if
Michigan’s a lock stuckening state. It diminishes them. But if you want
to protect rights that the US Supreme
Court has under enforced, you have no other option. This US Supreme Court
is not the Warren Court that judge Larsen
was referring to. The Warren Court, the
one that identified, developed, muscularized
all these rights. If you haven’t noticed, there’s
not as much rights innovation. This is not a debate. This is a math problem if the
US Supreme Court says, no, there is one option left, all right. You’re not going to
amend the Constitution. You may try to change the
composition of the court. That’s a couple decade process. You’ve got one option
left, state guaranteed. Read the history. You’ll find something. A good lawyer, it’s
legal imagination. And one reason,
the lock stepping is not the state courts
fault. It’s the lawyers fault, and it’s the law school’s
fault. The law schools aren’t teaching it,
therefore, there is no separate language of
state constitutional law. It’s like suddenly
saying let’s all speak French when no one
has ever had a French class. It can’t be done. So you guys have got to
figure it out, come up with the new language,
and win the case. Strieff gets out of jail
rather than sitting in jail. The stakes are that high. Can I have just a moment? Well, just to say the– This is sibling rivalry. The Fourth Amendment is
always the easy one to go to, because the question is,
is this unreasonable? It’s a balancing test. Sure people are going
to balance differently. But it’s not a hard
constitutional line. Like, I don’t know– the right to jury trial. How about this? We’ll do state
constitutional– we’ll do state constitutionalism
only in criminal law. How about that? That’s half the cases. They are 84 million state
court cases in a year, 350,000 federal cases in a year. Obviously, the stakes are
higher in state courts. About half of those
cases are criminal law. I’d be satisfied if every
state court in the country just took seriously
the criminal procedure protections in its state,
including unreasonableness, which is balancing. We’d be in agreement. It’s balancing, and I
think people could come out differently, sure. Could I jump in? So I– Are you getting nervous? No, you can’t. No, he can’t. You’re going to
tell us you can’t. It’s a tall order. Well, I think that
Judge Eid’s, the quote that she read from this
case, Curious Theater. I think really
encapsulates well what the nature of the challenge is. So I think what
Judge Eid read is what I would think of as the
dominant conventional view out there, which is
that state courts adopt the posture that when they
are construing an identically worded guarantee, they don’t
feel at ease at least– even if they are
free technically– but at ease departing from a US
Supreme Court decision that’s on point unless they can find
some textual difference, state specific history, or some
local circumstance, right, that justifies a departure. My personal view is
that this is wrong. This is a wrong
way to understand the federal structure. It’s a wrong way to understand
why it is we have state courts. And the reason this
is wrong is that there are a number of
historical reasons, which I think Judge Larsen and
Judge Sutton both pointed to, which is that the provisions
themselves in state constitutions were put there
by people who wrote words that then informed the
federal and then we’re genuflected back onto state. And so there is a porousness
of these provisions that wouldn’t necessarily grant to
just one decision-maker the one final word of these concepts– forget about words,
but they are there encapsulating these concepts
for all of America for all time. So just historically
speaking, the states have as much
ownership in a sense– if you’re an
originalist, they have as much ownership of the
meaning of these words as the national court would. But more importantly, I think,
for present day purposes just pragmatically, the notion– this begins– this, sort
of, takes Jeff right where he began, which is that
the idea that we would entrust one single court
with the one right answer to all
these problems that too is antithetical to the
basic postulate of federalism. So redundancy– we have
lots of redundancies in our constitutional structure. In fact, they make
things inefficient. That’s, kind of, the
problem sometimes in our constitution here. But that also is a way in which
our structure provides channels for conflict, not
necessarily in order to settle conflict for all
time but rather to manage it, to ensure that everybody even
the losing side of conflicts continues to be part
of the process, right. That could not be more
important than it is now, it seems to me, in the way that
we’re going in this country. And so the idea that you
have state courts that are disagreeing with what
the federal court does doesn’t strike me as at all
an affront to the rule of law or undermining the objectivity
of the constitutional decision making process. Ordinary Americans
know reasonableness. I mean, there’s lots of
why do we even have nine justices on the Supreme Court? If it were so clear what
the answer to things are, why would we need nine
people to figure it out? So I’ll just give you a couple
examples of just this– just this proposition. If you just think about– I already gave you the same
sex marriage example– but if you just think
about, for example, Batson versus Kentucky. That’s the case about peremptory
strikes being unlawful when they are motivated by race. So in a case called Swain
vs. Alabama some 10, 20 years prior to Batson,
the court had said you can’t– you’re not– you can’t prove racial
discrimination jury selection on the basis of the
strikes against the jurors in that particular case. There has to be a
broader pattern. Well, guess what? A number of state
courts disagreed, just flat out disagreed with
that holding of the US Supreme Court accumulation of
those state court decisions under their state constitutions,
not citing any particular state specific factors or historical
idiosyncrasies or whatever. Just disagreed, then
informed Batson vs. Kentucky. So if you go to
Batson vs. Kentucky, you see the US Supreme Court
citing these state court decisions under state law
for the basic proposition that Batson then establishes. It’s the same story with respect
to New York Times vs. Sullivan, the actual malice standard. You will see that decision
not coincidentally was written by Justice Brennan. Cites about 10 state
court decisions under state constitutional
law to say that the actual mal standard is the correct
standard under federal law. This cross citation
of these cases could not occur in my view
if state courts were solely in the business of
siloing their state decisions on the basis of
state specific considerations. Federal courts just
could so easily say we don’t need
to pay attention that, because the state court
itself says we’re different. And so it doesn’t necessarily
inform what the federal is. The reason it doesn’t inform is
because the state and federal courts are engaged in a
common, interpretive enterprise interpreting the same thing
when that makes sense. I just want to
emphasize one thing that Goodwin said,
which I think just really helps to think about
this I hope in a fair way. So when the US Supreme Court
uses state court decisions, obviously, the US Supreme
Court justices that use them are probably going
to be justices that adopt a similar method
of interpretation, right. A state court
originalist decision is going to be very appealing
to a Scalia, a state court more living constitutionalist
norm shifting decisions, and be more appealing to
say a Justice Brennan. Fine. This concept is for everybody. But let’s keep in mind
one other possibility. If the US Supreme Court
decision is say originalist and the state court
happens to be more living constitutionalists, of course,
they should not lockstep. That makes no sense, right. I mean, their method
of interpretation denies the possibility of
looking at it the same way the US Supreme Court did. And the opposite’s true. If you have a living
constitutionalist US Supreme Court decision, you’re
now a state court judge getting the same issue
under the state guarantee. It makes no sense that you would
presume the US Supreme Court’s right. You should actually
presume the opposite if you take the methods of
interpretation seriously. Great. Lots of point. All right, we have a little
bit of time– and I mean, a little bit of time– for a question or two. Sorry, you four judges up here. For academics, we just talk. Academics that [INAUDIBLE]. Walter, do you have a question? Yeah, I’m wondering if there’s
support for Jeff’s thesis and particularly as Judge Liu
amplified it in an argument that state courts have
greater legitimacy than where we are now with
the federal courts that we are one justice
away from this president naming someone who would
be the fifth justice named by a president who came
into office with fewer votes than his opponent. Now president Bush
was re-elected, but with the benefit of
the politics around 9/11. So, and we’ve got a majority
of the Supreme Court with presidents who
didn’t get as many votes as their opponent. I’m not saying it’s not lawful,
nor is confirmation unlawful just because we’re moving into a
period where 30% of the country is going to have 70 senators,
because the rural areas have gone into an ideological split. So we almost have the counter
majoritarian difficulty on steroids coupled
with the fact that it’s a very
old constitution. So the points you all are
making that, first of all, state constitutions are more
recent, more amendable, more susceptible, therefore,
to popular input. And the notion that it
varies from state to state, you’re chosen in different
ways but almost always in ways that are a little closer
to popular majoritarianism than the way we’re
choosing federal judges. So I’m wondering if
that’s a legitimacy– greater legitimacy argument. Judge Sutton addresses
this in the book actually. Yeah, I mean, I think
it goes both ways. I mean, the first answer
at most law schools would be you’ve identified a
majoritarian difficulty, which is we can’t take state
constitutions and state courts seriously, because
they are so majoritarian, they can’t be trusted to look
after dissenters minority rights. And so that has been a
very central critique. I do think the other side of
it is we now live in a world where they are the most
accountable judges. Because in most states,
there is some form of election regulation. And at a minimum, perhaps,
that can justify a little more rights innovation when the
people have a little more say over with those people are. I guess, that’s the way
I might think about it. No one has done any research
to my knowledge that says these differences
have led to different forms of interpretation,
which I think would be very interesting to
see if that’s happened. Can I just say that
having run statewide– I think I’m the only one who
ran on a statewide contested ballot– a nonpartisan ballot,
but nonetheless like I had opponents– state, I mean, at
least in Michigan you don’t campaign on like I’m
going to vote for the unions every time. I’m going to vote for
management every time. That is just not what we did. And so I just don’t
think this idea of we’re going to be accountable for
our results is the right way to think about it. I feel like that’s
always grading the judges on a test they didn’t take. The test is I got up
there and I said, look, if you’re looking for
a particular result, please don’t give me any money. Please take it to
the legislature. What I have is, like, I
have some legal training, and I have some patience
to sit through and read all these books. And I’m going to do
that and I’m going to work really hard for you. It’s a really boring job, but– so it’s just different– so I don’t know about this
idea that you’re more– you’re more accountable
for your decision-making, but not at the end of
the day for your results. Or I wouldn’t want it to be that
we’re running on our results. I think once judges
start running on results, I don’t know what the point is. Like, just let the
legislature decide everything. Why do you need judges? Well, what a tremendous panel. I think we’d be prepared
to let the four of you pretty much to
decide everything. It’s certainly
about [INAUDIBLE].. Let’s give them a big. [APPLAUSE]


  • Anthony Enright

    Not to disrespect you or your discussion but the Judges in the United States have forgotten their purpose and now have become the prosecuters in the Court cases.New York Suffolk County Supreme Court is now independent from the rest of the states and run their cases as to who they pick as their choice.There is no Law here just greedy Lawyers and the Judges who sign off on falsified papers so the Lawyers can obtain the homes of the Plaintiff and Defendants.These are bad days in America.

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