Checking Out State Constitutions

To respond to judicial retrenchment on the Supreme Court, Justice William Brennan wrote a dissent in which he reminded lawyers that “no State is precluded by the decision from adhering to higher standards under state law.”[1] He later expanded on that theme in a seminal law review article that explained that state constitutions “are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”[2] As many advocates rediscovered state constitutions and the fundamental protections they contained as independent sources of liberty, the “New Federalism” was born.

In 2020, Judge Jeffrey Sutton of the Sixth Circuit authored “51 Imperfect Solutions: States and the Making of American Constitutional Law,” a book that advocates that a solitary focus on the federal Constitution neglects the rich and complex contributions of state constitutions and state courts. In fact, the failure to consider whether the case should be argued on state, rather than or in addition to federal, constitutional grounds might be a form of legal malpractice.

A new website helps lawyers and others understand how state constitutions compare with one another, as well as the U.S. Constitution. The State Constitution Tool, https://stateconstitutiontool.org, is a free resource that provides extremely basic but helpful information. Users can select one of 26 topics, such as “speech” and compare relevant text across different states or the U.S. Constitution. Alternatively, a search function allows you to search for a particular word or phrase. A slider bar allows you to search for closer matching text, which may provide a basis for looking at the other states’ caselaw for potentially persuasive precedent in interpreting your state’s cognate clause, although many states adopt constructions of their constitutions based on a predecessor constitution from another state that served as a model of its own charter.

The University of Wisconsin Law School sponsors a more in-depth site, https://50constitutions.org/, that provides the text of 50 state constitutions and is searchable, while also linking to constitutional histories of those fundamental charters.

Another site, https://state-law-research.org/state-justices/ provides basic information about the justices serving on the states’ highest courts.  

Materials that can be incorporated into a constitutional law class that integrates state constitutional law is available for a free download from Rutgers Law School and its professors, Katie Eyer and Robert Williams: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418938

Another resource that advocates should know is a free newsletter that reports on state supreme court decisions, along with commentary, available at https://statecourtreport.org/.

Not only do state constitutions potentially provide more generous rights unavailable under the federal Constitution, but a host of resources can assist the appellate advocate understand the available rights under state constitutions.

[1]  Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977)