Closing Remarks

The following is a transcript of a panel at “State Constitutions and the Limits of Criminal Punishments,” which took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024. The transcript is edited for clarity.

Speaker: Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School

Robert F. Williams: Today, for me, it has been like sitting in a day-long concert, music to my ears. I started teaching state constitutional law in 1980. I was teaching the undue rigor clause. I was teaching the access to court clause provisions in so many state constitutions, yes, based on the Magna Carta. I was teaching the California cruel or unusual clause beginning in 1980.

So to come to a conference and help put together a conference like this is an incredibly exciting and invigorating thing for a guy like me to do. I want to say spending the last — I don’t know if it’s been nine or 10 months, Kyle, or 12 months working with Kyle Barry — across the country, from New Jersey to California, on organizing this has been one of the great experiences of my career. Every time you ask Kyle a question, he goes, “Sure.”

And I also want to thank the Proteus Fund, which provided funds for this conference. And so I just want to say a couple of closing things. I’m from Florida, so I used to say “law-yers,” but I’ve been in New Jersey long enough to say “lawyers,” the lawyers, professors and state supreme court justices that you heard today, I believe, stand on the shoulders of the lawyers, professors, and state supreme court Justices of the 1980s and the 1990s who really initiated this reincarnation. Chief Justice Shirley Abrahamson of Wisconsin called it a reincarnation of state constitutions.

And it was a similar time. Some of you heard me say it was the advent of the Burger Court. At the U.S. Supreme Court level, people thought the sky was going to fall. None of us knew what the sky really falling was going to look like, but it’s a very similar feeling that the Supreme Court is going to fade, is now fading quite far away from the protector of rights that we, many of us, studied and grew up with. And so I think there’s a debt of gratitude that all of us share with that crowd back there. I was part of the crowd at the time, but these state justices today come after state supreme court justices in California, New Jersey, Wisconsin, Iowa, a few other states that came out and lectured, wrote law review articles, wrote supreme court decisions encouraging the use of state constitutions to achieve some of the results we’re talking about today.

I just want to make a pitch to think about separation of powers. At the state level can be quite different from what we’re taught in con law as the doctrine of separation of powers. But a lot of what was discussed today, and I know Kyle and his colleagues are interested in this, that maybe there isn’t such a strict separation between judicial sentencing and executive branch incarceration. Maybe it’s not quite such a hermetically sealed difference there, and maybe the judges do have a little bit more power going into conditions of incarceration and maybe coming the other way. I’m not sure how that would work, but be aware that state separation of powers, like everything we’ve talked about today, can be quite different from the much more rigid federal separation of power stuff. Just think about it.

Going forward, we’ve decided on our law review here to continue this topic into next year’s annual issue on state constitutional law. So we already have the forward signed up with Justice Anita Earls from the North Carolina Supreme Court, a very interesting state supreme court justice. And Chief Judge Rowan Wilson of The New York Court of Appeals, who you heard today, has committed to write an article for us next year. So for your colleagues, we’ll have probably five, four, or five more openings for shorter or medium length articles on these same topics again next year.

I’ll just close by saying Dean Erwin Chemerinsky of the Berkeley School of Law wrote an article saying, “Only two cheers for state constitutional law.” And the reason was, as we’ve said, that state constitutional victories were second best compared to victories in SCOTUS. We know this. These victories will apply only in one state. They can be overturned by state constitutional amendments. It’s happened in a number of states. State constitutional clauses can even be lock stepped with federal constitutional law and constitutional amendments done in California, done in Florida, and in many states, the justices who decide these cases can be voted out of office. I think we have to admit those things. Those are true.

But in an era like we’re in now, where the likelihood of success on the kinds of questions you’ve been discussing today is pretty, pretty low in the United States Supreme Court, this is what we have as lawyers. And it turns out that doing state constitutional law even though you didn’t study it in most law schools — Judge Friedman studied using my book when he was a law student. It’s just lawyers’ work, it’s texts, it’s precedents, it’s history, and ideas. As the justices said, and it’s shaking free from what the United States Supreme Court has said the U.S. Constitution means, but still, it’s not the grand victory that we know as a SCOTUS decision is. But as I said, anybody who’s ever won a case in the state supreme court knows, it’s not chopped liver. It’s one heck of a lot of fun, and it’s spectacular for your client.

So thanks for coming. Keep up the fight. Convince people to write for us next year, and oh, and talk to your friends. Your lawyer friends. Tell them about state constitutional law. I taught for 40 years a landmark case that one of my law school classmates won in the Florida Supreme Court just because when we were having a beer, he said, Bob, I got this great pro bono case in my firm, they’re going to let me do it. It’s a great federal due process and equal protection case. And I said, “Okay, have you ever looked at the Florida constitution?” He won that case three years later. I taught it for 40 years. So talk to your friends. Thanks for coming.