Court columns

All Law Students Should be Educated About State Constitutions

Fortunately, there is a resource that makes it easy to incorporate state constitutions into the first-year constitutional law course.

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Virtually every law school in the country requires students to take a course in federal constitutional law. Thus, no lawyer will escape law school without exposure to core federal constitutional principles — the separation of powers, federalism, due process of law, and other basic federal doctrines. At a minimum, the standard law school curriculum ensures that all new lawyers will be aware that the federal Constitution exists and is an available tool of legal argument.

But as Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, has observed, no law school requires students to take a course in state constitutional law — and only a small minority of schools even offer state constitutional law as an elective. This has real-world consequences, as it may mean that lawyers are genuinely unaware of the potential for state constitutional arguments. In an era when federal courts are increasingly hostile to federal constitutional rights — and state constitutions are of increasing importance to the protection of rights — it is especially critical to address this fundamental gap in knowledge.

Indeed, state constitutions are at the forefront of litigation over numerous important constitutional issues today.

In 2022, the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision overruled Roe v. Wade and held that there is no federal substantive due process right to abortion. In the wake of Dobbs, state constitutional protections for abortion, which already existed in a number of states, have become increasingly important. A wide array of states, ranging from Montana to Mississippi to California, have held that their state constitutions provide a constitutional right to abortion.

In its 2019 decision finding partisan gerrymandering to be non-justiciable under the U.S. Constitution, the Supreme Court reaffirmed the ability of states to find partisan gerrymandering to be unconstitutional under their own constitutions. Since that time, numerous states have found partisan gerrymandering to violate their constitutions.

The Supreme Court has taken a hands off approach to constitutional review of economic regulation in the modern era, typically affording such regulation only highly deferential review. But many state courts continue to engage in meaningful review of economic legislation under state constitutions. This more meaningful review under state constitutional law has been used, among other things, to strike down burdensome occupational licensing regimes, invalidate protectionist “special interest” legislation, and invalidate limitations on workers’ compensation recoveries.

Law students should graduate with some knowledge of this state jurisprudence. While a semester-long course in state constitutional law might be ideal, there is another, simpler way for law schools to address the knowledge gap. If constitutional law professors were to dedicate just a single class session to state constitutions, they would ensure that all new lawyers are aware that state constitutions exist and are an additional potential tool of legal argument. Constitutional law professors are well situated to offer students this basic exposure to state constitutions and state constitutional law.

The State Constitutional Law Casebook Supplement (available here, co-authored by myself and Rutgers Law professor Robert F. Williams) is designed to provide teachers of first-year federal constitutional law with materials for a unit on state constitutions. Designed to be taught in a single class, it introduces students to the existence and importance of state constitutions; describes and assigns short readings on the three primary approaches that states take to interpret their constitutions; discusses key limitations of state constitutional strategies; and provides a series of exercises that students can use to get to know the basics of their state’s constitution. The casebook materials are updated as of April 2024 and are issued under a Creative Commons 4.0 License so that they can be edited and repurposed for classroom use.

It is a critical time for lawyers to be aware of the potential arguments that state constitutions may afford them. In areas from religious liberties to transgender rights to gerrymandering to reproductive justice, state constitutions are at the forefront of contemporary constitutional litigation. Law professors should view it as an important part of their pedagogical mission to make law students aware of state constitutions and their potential as a source of constitutional rights. Fortunately, ensuring such basic exposure requires little more than setting aside a single class session in the mandatory first-year constitutional law course.

Katie Eyer is a Professor of Law at Rutgers Law School.

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