The Diversity of Rights in State Constitutions

The following is a transcript of the panel “The Diversity of Rights in State Constitutions”, which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Thursday, Nov. 6, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.

This panel focused on the many types of rights that are embedded in state constitutions, from “mini” bills of rights to child labor to gender. State supreme court justices are not limited to lockstepping federal interpretations of rights.

Speakers:

• Ting Ting Cheng, Director of the ERA Project, NYU Law’s Birnbaum Women’s Leadership Center
• Martha Davis, University Distinguished Professor of Law, Northeastern University School of Law
• Andrew Hammond, Professor of Law and Harry T. Ice Faculty Fellow, Maurer School of Law
• Hon. Melissa A. Long, Associate Justice, Rhode Island Supreme Court
• Anthony Sanders, Director of the Center for Judicial Engagement, Institute for Justice

Moderator:

• Alicia Bannon, Director, Judiciary Program, Brennan Center for Justice

Kasia Wolfkot: Okay, hi, everybody. We’re about to get started. A reminder that if you need CLE credit, sign up at registration. There’s a link there, and we’re about to start our next panel. This one is “Diversity of Rights in State Constitutions,” and it is moderated by Alicia Bannon, the director of the Judiciary Program at the Brennan Center.

Audience member: Woo!

Alicia Bannon: All right, welcome, everybody. So as Kasia said, I’m Alicia Bannon from the Brennan Center and State Court Report, and I am really excited to be moderating today’s panel on the “Diversity of Rights in State Constitutions.”

So part of what makes state constitutions interesting and potentially powerful is the breadth and richness of the provisions that they have. There’s just a lot of stuff in them, and the diversity of rights contained in state constitutions means that these documents have the potential to chart a very different path than what we’ve seen the federal courts take under the U.S. Constitution. So we’re going to speak today about some of the unique provisions in state constitutions, as well as how some of these provisions are being used or could potentially be used in the context of both law and policy.

We have a fantastic lineup of panelists to help us think through these issues. You should have received a link to their full bios, so I’m not going to go through lengthy introductions, just to give us more time to have a conversation, but just to briefly introduce and welcome, I’ll just go down the line. We have Ting Ting Cheng, who’s the director of the ERA Project at NYU Law’s Birnbaum Women’s Leadership Center. Then we have Martha Davis, a university distinguished professor of law at Northeastern University School of Law. Next, Andrew Hammond, a professor of Law and Harry T. Ice Faculty Fellow at the Maurer School of Law. Then we have the Honorable Melissa Long, an associate justice on the Rhode Island Supreme Court. And then last, but not least, we have Anthony Sanders, the director of the Center for Judicial Engagement at the Institute for Justice.

So thank you all for being here and welcome. We are going to welcome questions from the audience. If you have questions, you can text them. The number is 971–801–0271, and we’ll have it rotating above us too, but we welcome questions. We’re going to leave time for that at the end. So I’m going to start us off with a level-setting question, just to talk a bit about the breadth of provisions that are actually contained in state constitutions.

So Anthony and Justice Long, I’m going to put you two on the spot first. Anthony, can you give us an overview of the kinds of provisions you frequently come across in state constitutions? What actually makes state constitutions so different and distinctive than the federal Constitution? And once, you know, just easy, just give us an entire overview of the 50 state constitutions (laughs), then we’ll turn to Justice Long to give us a bit of a case study of Rhode Island’s Constitution and what makes Rhode Island distinctive.

Anthony Sanders: Sure, thank you. Thank you, Alicia, and thank you to the Brennan Center and Northwestern for inviting me here. I always love talking to the dozens of others who are super into state constitutions from around the country. Hopefully, we’re growing those dozens here today.

So every state at this time, it wasn’t always true, but every state has its own bill of rights or declarations, a declaration of rights in its state constitution, where it lists all these things that we know as rights and that should be paid respect to because it’s in this thing that’s called the “bill of rights” or the “declaration of rights.”

That is different from the U.S. Constitution, which, of course, has a Bill of Rights, but it wasn’t really drafted that way, right? It was kind of by accident. It was these rights that were added as amendments right after we adopted the Constitution, but they weren’t specifically just because they were rights. We have other rights that were adopted later, such as the 14th Amendment. There were other rights already in the Constitution, like the Contract Clause.

And so, through the course of history, both before and after the Constitutional Convention, states have been more focused on making sure rights are special in their state constitutions. So what are those rights? Well, to quote noted “judicial scholar” Cheech Marin, “They’re the same, but different” from what you might find in the U.S. Constitution.

So a lot of things in state bills of rights are very familiar. You have protection of free speech and the press. You have protection of religion or conscience as they’re often called, as Judge Sutton said. There are protections for criminal defendants, like we have in the Fourth through the Eighth Amendments in the U.S. Constitution.

But then there’s a lot more than you might find there, and there’s a diversity amongst state constitutions. So the wording just of what’s protected the same as the U.S. Constitution is not exactly the same, because it’s worded differently. It might be interpreted the same, but it’s not written the same, and then there’s all kinds of other things. There’s protection against monopolies. There’s a little over a dozen states that have those kinds of protections. There are protections that are pretty sweeping in language that protect life, liberty, and the pursuit of happiness, the possession of property, all this language that sounds like it’s from the Declaration of Independence, whereas actually the Declaration of Independence took that language from the original Bill of Rights of the Virginia Constitution.

And then we could go on and on, and I’m sure we’ll get to some of this later, of other specific provisions that are in state constitutions sometimes because they’ve been shared between states in their history and their drafting history, and sometimes because they were specifically banged out in a specific constitutional convention, or an amendment that is specific to that state. And so, it’s how do you handle that diversity, whereas also having kind of just the shared constitutional culture, that often is the challenge with what to do with these bills of rights.

Hon. Melissa A. Long: And turning to Rhode Island, I always start, especially in an audience that is not in the Northeast, by just giving a little background about Rhode Island. We are the Ocean State. We’re known as the Ocean State. We have more than 400 miles of coastline. We’re only 37 miles wide, 48 miles long, 39 cities and towns, nicknames, many nicknames, actually, that came in the immediate aftermath of the American Revolution, including Rogue Island, because we are a stubborn little state.

“First in war, last in peace,” we were the first ones to issue an Act of Renunciation May of 1776 before the Declaration of Independence. But as many people know, we failed to show up at the Constitutional Convention, or rather in Philadelphia in 1787. We were the one state that decided to boycott that summer.

Rhode Island was founded by Roger Williams. I think that Judge Sutton mentioned earlier about states founded on religious liberty, and certainly, Roger Williams was, for us, our founder on the basis of religious liberty. He was kicked out of the Commonwealth of Massachusetts, then the colony of Massachusetts, in 1636. He sought a patent first from the Parliament, Earl of Warwick in England in 1644, and then when the Stuarts came back to power, he got the charter in 1663. These background facts do become pertinent actually to the constitutional piece, so I just love to set the stage. Another thing to mention is that we are the most Catholic state in the country, but we are also the site of the oldest synagogue in the country. Touro Synagogue in Newport was established around 1658.

We operated under the charter, that 1663 charter, until 1843. I think Connecticut was the other state that operated under a charter for a long period of time. We were very happy with our parliamentary patent, especially the landowners and the establishment party in power.

And so what happened leading up to it? There was a rebellion, the Dorr Rebellion, that was in 1841–1842. For those of you, maybe like me, who hadn’t really given much thought to Rhode Island by the time you were in law school, the way it often appears for folks is Luther v. Borden. That was the case law that, or the case that, went to the United States Supreme Court and where then-Chief Justice Taney came up with the political question doctrine from Rhode Island. The constitution that was adopted in 1843 retained residual powers in that legislature, that parliamentary body, which, again, becomes very significant even up into the 21st century.

We finally adopted a second constitution in 1986. That is the constitution that we operate under now. It has 15 articles, and Article I is our declaration of certain constitutional rights and principles. I can carry it in a little pocket guide, happy to say. There are 24 individual rights provisions. I’m going to talk about four of them that I think are sort of interesting. There are a lot of really interesting ones, but I think four that tie to this history that I’ve just given, and I’m going to also talk quickly about four structural sort of power provisions that I think are interesting vis-a-vis the rights.

Professor Seifter talked earlier about the ability to amend the Constitution. Article I, Section 1 of our Constitution is absolutely, puts it out there. There’s a right to alter, to make and alter the Constitution, but until that time, the Constitution is obligatory upon all. See Dorr Rebellion. Article I, Section 2 is the laws for the good of the whole, burdens to be equally distributed, due process, equal protection, a non-discrimination clause, and also a provision that says quite specifically there’s no right to abortion. See the most Catholic state in the country. Article I, Section 3, freedom of religion, going back to, of course, Roger Williams.

I think it’s very interesting that when we talk about long documents and short documents, our freedom of religion clause in Article I, Section 3 has 183 words compared, of course, to the 45 words in the First Amendment. But among those 183 words are the words, “To hold forth a lively experiment,” and that comes directly from that 1663 charter. The last individual rights provision that I’ll just highlight is Article I, Section 17, fishery rights, shoreline privileges, preservation of natural resources — 400 miles of coastline, the Ocean State.

In terms of structural power, we have [Article XIII, Section 1] , “home rule” for cities and towns. There’s an intent to grant the right of self-government in all local matters in Rhode Island — 39 cities and towns. Of course, goes back to our history. Roger Williams founded Providence. The additional first three towns were Portsmouth, Warwick, and Newport. And so a strong sense of local control. Article I, Article X, rather, Sections 4 and 5, there was some mention of this this morning. That provision was amended in 1994, and what it, those two provisions, the sum of them is that the “Grand Committee,” which was both houses of the legislature, no longer have the ability to choose the members of the Rhode Island Supreme Court. We are now chosen by, we are now selected by, the governor and then confirmed by both houses, and also we do have the life tenure. We are the only state in the country with life tenure. So my four colleagues and I can be there as long as we want.

And Article III, Section 8, the ethics commission provision, was adopted in that 1986 Constitution. The reason I think that’s significant is because it then ultimately led to our final, and I think one of the most interesting things about Rhode Island. The ethics commission upon establishment did try to adopt some regulations regarding the activities of the legislature. Again, remember, those residual powers from this parliamentary body. That launched essentially a long campaign to finally actually have separation of powers in Rhode Island. That provision for separation of powers between the three branches of government was not adopted until 2004.

Alicia Bannon: That’s fascinating. I learned that just when we were doing our pre-call, that there was no separation of powers before 2004.

Hon. Melissa A. Long: It is sort of amazing, I think. I was living in Rhode Island at the time. As I said to Alicia, I remember voting on that, and I had very young children at the time, so I think I was probably really sleep deprived, and tired, and three little kids at the voting booth, and I remember sort of thinking, “Duh.” (Melissa laughing.) (Audience laughing.)

Alicia Bannon: And I do think, “Rhode Island, a stubborn little state,” maybe for the next license plate, we’ve got our new motto. Andrew, I’m going to have us turn now to go a little more deeply into some particular provisions, kinds of provisions that we see in state constitutions. You’re working on a paper right now as part of this symposium with Helen Hershkoff about how state constitutions could be a tool to respond to the resurgence of child labor in many states.

So can you talk to us? What do state constitutions have to say about this, and why do you think they might be a more powerful tool than the federal Constitution or federal labor laws when it comes to these issues?

Andrew Hammond: Sure, well, thank you, again, to the Northwestern University Law Review and the Brennan Center for bringing us here today. It’s a real pleasure to be on this panel and in conversation with you all. I have to take a step back, though, because some people in the audience might not know that child labor legislation is kind of back on the American legislative agenda in a bunch of state legislatures. So I do want to kind of convince you that this is a space to watch. A bunch of states are rolling back child labor protections right now.

So Alabama, for instance, has weakened the kind of regulatory scheme, so 14– and 15-year-olds can now work in that state, they don’t…without parental notification, or sign-off, or work permits. Arkansas has repealed work certificates for 16-year-olds. They repealed legislation that had been in the books in that state since 1914. Indiana, I teach at Indiana University, Indiana has moved from a work permit to just notifying the state that you employ children.

So there is a kind of weakening of the kind of regulatory apparatus for child labor. We’re also seeing fewer limitations on the types of work. So Iowa, for instance, is permitting teenagers to work in construction. If you know anything about child labor issues, you know that children are more likely to get injured on work sites and more likely to die on work sites compared to adults.

And so, if you start permitting teenagers to get up on roofs and scaffolding and the like… At the end of the Biden administration, the U.S. Department of Labor actually wrote a letter to Iowa saying, “We think this is in violation of federal law,” and then the election happened. There also are changes in terms of hours.

So in a bunch of states, teenagers will be able to work on school nights. That had been kind of prohibited before. Fewer limitations on hours worked, work breaks, and the like. We’re also seeing a bunch of states permitting children to serve alcohol. Even though they can’t drink it, they can serve it, and thinking about whether we want teenagers to be working in establishments, restaurants, you name it, where they’re serving alcohol to adults.

And just to put a pin on this, the West Virginia legislature in 2022, they passed two bills I want you to be aware of. They passed a statute saying we need to build a memorial to child labor victims because that state has a kind of horrific history of children dying in mines, and then two years later, they passed a law saying that children can work in settings that involve hazardous machinery and roof construction.

So this kind of… I’m not a state constitutional law scholar. I’m a proceduralist who teaches civil procedure and administrative law. So I’m not among the people who will be speaking to you today and tomorrow who are saying, “Come on in, the water is warm, state constitutional law.” I feel like this stuff is just kind of coming for the people I care about, which are poor kids, and I’ve written a lot about welfare litigation in the past, and so, I’ve teamed up with Helen Hershkoff because we’re seeing all of this legislation, and you might think, “Oh, well, we’ve got the Fair Labor Standards Act of 1938,” a big part of the New Deal legacy. It was a huge fight against child labor involving club women, social workers, and immigrant communities. It’s really tied into women getting the right to vote and suffrage back in the early 20th century. And now, we’re seeing this kind of return of child labor legislation.

And so, Helen and I are trying to think through what would be the kind of advocacy strategies. Even though we’ve got these federal prohibitions, they just provide a floor. States can try and protect children more in these work situations, but enforcement is really weak at the federal level, and this was true before President Trump returned to office. It looks like there are more and more kids getting injured in work settings across the country, and that’s basically a long-term trend of the last 10 or 15 years. And so, there’s real concern that basically we will not be able to expect the U.S. Department of Labor to do its job enforcing longstanding protections for children in this way.

And so, Helen and I are trying to think of state constitutional provisions. I’m sure a lot of people are aware every state constitution has a right to free public schooling. And so, one question is can we come up with litigation strategies that say, “Well, this infringes on children’s rights to be in school.” The welfare provisions, there aren’t as many. I’ll just point out that New York does have under Article XVII a right to public support that relates to individual and family autonomy.

Helen’s an expert on this. She teaches, she’s a longtime faculty member at NYU. There also are labor protective provisions. I know Brian Highsmith is here from UCLA. He’s speaking in one of the breakouts on economic justice. He could speak about this more eloquently than I could about labor protections in various state constitutions. Some of these are self-executing, I should say.

Some do not require state action, and I think part of what Helen and I are trying to think through is that given the role of ALEC and organized business interests at the state level and this crop of state legislation, I think we’re going to see more of it in places like Florida. Wisconsin’s governors vetoed it twice, New Hampshire, it’s gone back and forth. Is there a way in which litigators, child advocates in these states could challenge it on federal law grounds, but also make additional state constitutional law arguments, recognizing that the Trump administration has been doing things that are to kind of shut down the Department of Labor, in particular, the Wage and Hour Division that’s been a really important enforcer in years past?

I will say, though, that this is also an exciting time, for some states are kind of trying to step into the gap. So Justice Long’s state, Rhode Island, actually said, “We need to inform teenagers about their rights as workers.” And so, they actually have to go through some kind of training before they can get the work permit. Illinois and Michigan last year have strengthened their child labor legislation. I think it’s really encouraging, and a bunch of states, Oregon, Nebraska, and New York, are increasing civil and criminal penalties.

So as I said, we’re kind of thinking of this more as an advocacy strategy. Can state constitutions help litigators in individual states? Can it be one arrow in the quiver in addition to a kind of federal and state strategy, recognizing that legislatures are going to continue to pass this legislation certainly for the next few years?

Alicia Bannon Thank you for that, and many of these themes we’re going to keep coming back to over the course of this conversation. I’m going to turn next to Ting Ting and Martha. Both of you are doing work and research related to gender equality rights in state constitutions. So I want to hear a little bit about your work, and then we’ll turn back to the group for further conversation.

So Ting Ting, I’ll turn to you first. You have been at the center of campaigns around state ERAs, state Equal Rights Amendments. So can you just kick us off? First, what are state ERAs, what states have them, and how are you seeing them being used?

Ting Ting Cheng: Alright, thanks for having me. It’s amazing to be here with people I really admire. So I’ll give people a very brief overview of the federal ERA for those of you who don’t know. It’s probably me telling you what you know already, but essentially, the U.S. Constitution is a global outlier. Most constitutions in the world have explicit sex equality provisions. When the U.S. is asked to advise on new constitutions, like Afghanistan, we advise them to add sex equality into their document. We don’t have that.

We also happen to have the oldest constitution in the world, the hardest one to amend, and a current Supreme Court majority that’s trying to put us in a time machine and take us back to the 1700s and interpret this document as it was sort of understood at that time. So we’re not in a great place right now, which is why we desperately need something like the ERA.

The federal ERA would explicitly guarantee sex equality in the Constitution. It was proposed almost, well, in 1923 by Alice Paul and her fellow suffrage movement leaders on the heels of the passage of the 19th Amendment. The idea is that the right to vote is only the beginning, and we needed another amendment to create a full spectrum of rights that guarantees sex equality.

Since then, the ERA has satisfied both the extremely high supermajority federal bars to amend a constitution. That’s a supermajority passage in both houses of Congress, which happened about 50 years ago, and then also ratification by 38 state legislatures, which finally happened with Virginia in 2020.

There are some procedural issues that kind of are in the way of the finalization of the ERA, and I would say the perceived legitimacy of the ERA, as the 28th Amendment. Now, these are issues that can and should be resolved by Congress, and Congress has taken substantial steps to do so. So nothing’s dispositive. Like nothing can happen to kind of take away the achievements of the ERA, but I do think that we are in a moment where as a legal matter, I think that you could make a very strong argument that the ERA is the 28th Amendment.

As a political matter, there are some procedural issues that need to be resolved and that currently we’re waiting on a political sort of ecosystem to do that. So meanwhile, there are 50 state constitutions and independent judges to interpret the constitutions. It’s a very exciting time. State ERAs are a space to watch as well. There are 29 state ERAs that are not in dispute. No one’s going to spend their entire careers litigating the legitimacy of these ERAs. They’re not all wonderful. Some of them were passed to explicitly curb affirmative action, so not enhancing equality, but a very small number. Some of them are very limited and kind of weak, like actually the California one, the New Jersey one, just hasn’t really been implemented because of the nature of the weak-sounding language. But it’s very exciting because they do allow for greater judicial innovation, broader interpretation, and they can provide remedies that federal courts can’t.

The other thing to think about, too, is that they can do things like be self-executing, meaning they can be implemented immediately without any kind of implementing legislation. They could perhaps apply to private actors beyond the government depending on how the language is written and how they’re interpreted by the courts. And also, just in general, state constitutions are much more tethered to the people. Overall, they’ve been amended over 7,000 times versus the 28 times that the federal Constitution has been amended.

Judges are much more accountable. Some of them are appointed, or elected through a political process, or an appointment process that’s subject to very frequent changes. So this is all very exciting, and I’ll quickly take people through kind of the recent advancements, what you need to know about what’s been happening at the state ERA levels with state ERAs. So they have been used to challenge abortion bans and funding bans in states. Some of these ERAs are extremely old, like sex equality was a part of the original Utah Constitution, so it’s not even an amendment, and it’s currently being used to oppose the state’s abortion ban.

In Pennsylvania, there’s a 50-year-old state ERA, which has been recently revitalized by the Pennsylvania Supreme Court to reconsider their Hyde Amendment. Some of the ERAs at the state level were passed in the '70s as a part of the kind of broader federal kind of momentum, and then I think the most interesting ones are the ones that were passed recently in reaction to Dobbs, and these are expandedly-worded ERAs that go beyond sex in a lot of cases or define sex to be inclusive of LGBT rights. The one in Delaware and Nevada does that, and then the most recent one that was added to the New York Constitution, New York’s Constitution guaranteed equality based on race and religion, but nothing else.

And so, this ERA was added to affirm those protections, but also to add equality protections on the basis of immigration status, and age, and national origin, and disability rights, and then a whole spectrum of reproductive rights and access, including pregnancy outcomes, bodily autonomy, access to reproductive healthcare. So just super exciting. Other states are following suit. Vermont, Maine, Minnesota, Wisconsin are actively trying to amend their state constitutions and thinking through whether their ERAs are going to also serve as a reproductive rights amendment, which is very, very exciting.

The last thing I’ll add is that situating reproductive rights in an equality framework using the ERA is a really important thing to consider. As you all know, Roe located abortion rights and privacy and liberty under the substantive Due Process Clause. This framing reduces reproductive rights to a private choice about what to do with your body, and, as we know, reproductive rights isn’t just about that. It’s not just about a right to wear a mask or not, or a right to get a surgery or not, right? It’s situated in a much larger historic and societal context. Privacy does not address the equality implications of forced pregnancy and birth and fails to recognize how reproductive control affects every aspect of participation in society. So when I’m working with legislators and advocates in states to either bring about a kind of modern interpretation of sex equality under an existing state ERA or to add a new ERA that is responsive to the needs of today, to this current of kind of very restrictive, regressive reproductive rights new order, that we’re also thinking about how when we talk about reproductive rights as an equality issue, we’re talking about it as a fundamental like equal citizenship and participation in the democracy and about the removal of barriers to access. So not only about the ways in which laws are written, because a perfectly written constitutional amendment might not be able to deliver on the promise of reproductive rights in a state that’s quite liberal if you don’t remove the access.

So it’s about the redistribution of resources. It’s about guaranteeing childcare, job security, and transportation, and accommodations, and things like that. So that doesn’t come directly out of constitutional language. It comes from how you interpret it in a positive, substantive way, and I do think that that’s really the greatest potential of state ERAs right now.

Alicia Bannon: Thank you so much for that. So Martha, I’ll turn to you. You are also working on a paper right now looking at the relationship between sex discrimination and pregnancy discrimination and the extent to which state courts have been departing from federal constitutional standards on these questions. So can you walk us through this research and what you found?

Martha Davis: Sure, so I actually thought I would start with a story,

Alicia Bannon: Please.

Martha Davis: So (chuckles) in 2007, I got a call from someone at the Federalist Society, and that’s a group I’ve never been a member of — sorry, Anthony — and they asked if I would attend their annual conference and debate Phyllis Schlafly, who hopefully people in the room know, who was the leader of the opposition for the Equal Rights Amendment. Very dynamic person. And so, I wasn’t that keen on it, you know? But I thought about it, and I thought, “Do I want to put myself through that?” But then I thought, “I need to step up,” so I did it.

And at the event, we’re debating back and forth about the Equal Rights Amendment, and someone, the moderator or someone, asks the question that comes up all the time. “So we’ve got intermediate scrutiny already” under the federal Constitution for sex. “What difference would an ERA make?”

And I answered, "Well, I think it would undercut this case called Geduldig v. Aiello.” I hope some people might’ve had a con law case book that had this in it, Geduldig v. Aiello, which is the case that says that pregnancy discrimination is not sex discrimination. Says that in a footnote, footnote 20, and it was a case that came up in the context of treatment of pregnancy in disability insurance.

And Phyllis Schlafly looked at her friendly audience at the Federalist Society, and then at me, and said, “What? I never heard of it. I never heard of that case.” And I tried to explain that there really was a case that said that pregnancy discrimination is not sex discrimination, but it just sounded crazy, you know? And Schlafly before this friendly audience kind of implied that I just made it up, that I was, this is how I was going to win the debate, was making up this case.

And so, I don’t really know who won the debate, but I’ve often thought that Schlafly certainly knew about this case, the Geduldig case, and was putting me in the position of explaining it and with this crazy rationale coming out of me, and she made me seem unhinged.

So since then, I’ve been very interested in the treatment of Geduldig, and I’m writing on state courts’ treatment of the U.S. Supreme Court’s decision in the Geduldig v. Aiello case, and the principle that it articulates that pregnancy discrimination is not sex discrimination. The case was decided in 1974, and soon after that, in the case of General Electric Company v. Gilbert, the Supreme Court applied the same principle to Title VII, but Congress responded and enacted the Pregnancy Discrimination Act to counteract that Gilbert ruling.

But of course, Congress can’t reverse the constitutional ruling. So Geduldig has never been overturned. It still stands, and it’s been criticized by many scholars. Justice Ginsburg was particularly critical of it. Justice Ginsburg, actually, when she was a litigator at the ACLU, filed an amicus brief in the Geduldig case herself, and then had a kind of an outburst later in Coleman, Coleman v. Maryland Court of Appeals, calling on the majority of the Supreme Court when she was a justice to reverse it.

But recently, it’s been kind of revived or become more prominent, and it’s become one of the building blocks in recent cases, in Dobbs, for example, where the court addressed the question of whether or not the Equal Protection Clause could be a basis for abortion rights, and said, “No, Geduldig,” you know? Pregnancy discrimination isn’t sex discrimination. And so, that resolves it.

And then even more recently in the Skrmetti case involving gender affirming care, Chief Justice Roberts expanded this footnote beyond pregnancy to say that because of Geduldig any medical procedure that one sex undergoes is not a violation of the Equal Protection Clause. So I wanted to see how state courts have treated this federal precedent over the decades. And of course, now, there’s no plausible denial that people know about the Geduldig principle because it started showing up in these prominent places.

And with this research, I was hoping to find that state courts had criticized Geduldig and had developed clear alternatives to the federal doctrine that could push up against it. And instead, I found that most state courts have rejected Gilbert, the Title VII case, when considering their state fair employment practice laws. And so, they’re doing statutory instruction and saying, “We can read sex discrimination, pregnancy discrimination, into the sex discrimination clause.” But Geduldig doesn’t come up very much, and when it does, the results are mixed.

Some courts mention the scholarly criticisms of Geduldig. But rather than rejecting Geduldig as an equal protection approach, courts seem to rely on textual distinctions that show up in the ERA in the 29 states that have equal rights amendments. And so, the presence of an equal rights amendment in the state constitution is what makes the difference in most of these states, not all. So there are about, I’m not going to, don’t hold me to these numbers, but about 16 cases that have departed, state court cases, that have departed from Geduldig, and 12 of those were in states with equal rights amendments, and then there are eight cases that accept Geduldig, and two, only two of those have ERAs. So there’s a kind of correlation between which ones have ERAs and which don’t. And so, that’s great, and I applaud the activists that have worked on equal rights amendments, but I don’t think that ERAs should make a difference analytically, you know? Really Geduldig should be wrong as a matter of standard equal protection analysis. And so, as a result of this, because the ERAs are so important to this issue, it means that the state courts are not really in dialogue with the federal courts, not really undercutting the assumption that underpins Geduldig. And so, anyway, so that’s what I’m looking at is that kind of how it’s been treated in the state courts.

Alicia Bannon: Thank you so much for that. I’m going to turn back now to Anthony to talk a little more about some of the additional provisions in state constitutions to kind of get the mind working. One of the things that I find very interesting about state constitutions is provisions that seem random. Like they seem like, “Why on earth would this be in a state constitution?” But then if you dig a little deeper, they often have these really fascinating histories, purposes behind them, and often have been kind of underappreciated.

And so, Anthony, I wanted to turn to you to share — I know this is something you have thought a lot about — some of the unique provisions that you’ve come across that you think perhaps haven’t gotten enough attention.

Anthony Sanders: Sure, and the trouble with doing this is, of course, there’s 50 different targets. And so, if I just pick something that’s in one particular state constitution, to most of, to the other 49 states, it’s going to sound like an anecdote, but I think it paints a bit of a tableau. By the way, that debate, was that in 2007? Was that here at Northwestern?

 Martha Davis: No, it was in D.C.

Anthony Sanders: Oh, because I went, I remember the student symposium. I was a practitioner here. I came for the CLE that year, and Phyllis Schlafly debated someone else.

Martha Davis: She must have been on this…

Anthony Sanders: Yeah, and I don’t remember if Geduldig came up, but I’m guessing probably not.

So states, as I said, state bills of rights are all written a little bit differently, and they should be written differently. Let’s step back a moment here and think about how our Constitution’s written, right? We all know the story of 1787 and the federal Constitution Convention, deliberative body spends several months, tries to come up with a text that everyone can agree on. Most people do, not everybody, then goes for ratification. Then we have the amendment process, right? And every state is different about the amendment process as well.

Most state constitutions have been formed through a similar type of convention. More recent years — and recent years I say because the last time we actually had a new state constitution was in Rhode Island in the '80s. We’re in a bit of a drought here. That’s a whole different story. But most of the time in U.S. history, there’s been a similar constitutional convention where delegates get together. They may be at odds in all kinds of ways, but they try to come up with a compromise.

It must be a very humbling experience. They come to a text and then usually it goes to the people for a vote and then it is adopted, right? So the people in that auditorium, when they are making, having these debates, when they’re in the committee stage, just trying to come up with a draft, right, bill of rights, or section on corporations, or section on legislature, whatever it is, there is a lot of time spent on that, just like there is for like a law that comes out of Congress.

And so, there are a lot of choices along the way on exactly how that should be worded that they take very seriously. They’re not just copying and pasting from other state bills of rights without reflection, right? We might not know what they were thinking. They might not have recorded all of that. For most of these conventions, there’s not even committee reports for most of this stuff. We usually have a transcript of what they were talking about, except for some of the early constitutions, but even then they don’t debate every provision. But you know that there has been deliberation in there at some point.

I have read far too many of these transcripts, and in some of them, I have seen how these delegates have debated for literally days a word or two in the bill of rights and whether it should be included, whether this term “natural” should go before inalienable rights, for one example, right? So that word natural means something in that constitution. So with that being said, let’s look at some examples of what are in these state constitutions. I’m just going to throw a few out here.

What my work and my colleagues’ work at the Institute for Justice is often involved with is issues of economic liberty, your right to earn a living, your right to contract, and also property rights. So we usually think about that in, say, a takings context. There are all kinds of other provisions in the state constitutions that have to do with those subjects. So one of my favorites, and this was actually not from a constitutional convention, it was from an amendment to the state constitution, is in my state where I live now, in Minnesota. There is a provision that says, “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”

Like that’s really specific. What’s going on there? Well, what happened was, it used to be a big deal if you were, and still is to some people, if you were selling the products you’ve grown on your farm or even your garden. And the city of St. Paul, and Minneapolis, and other cities were notorious for demanding licenses of someone who’s just pushing their pushcart through the streets trying to sell some vegetables, or going to the farmer’s market. There, these licenses were really just disguised taxes. So it was prohibitive if you were, say, out of the county, to sell your products.

One of these peddlers got angry about this, and led a movement, and it was a constitutional amendment in the early 1900s that you can’t license. Okay, so you can’t license, but can you regulate a lot, so it’s basically like a license? Well, that’s a question that has come before the Minnesota courts and, unfortunately, has kind of been dodged by the courts and remains unanswered. But it’s a provision in the Minnesota state constitution that for people who sell or peddle the products of their land, which is still a lot of people, it can be a big issue.

Another one that I’ve written about from Montana, which is a state with a relatively new constitution from 1972, it’s also a state where I clerked at the supreme court, so I know a little bit about it. So earlier I talked about a lot of states have these provisions that have kind of grand sweeping language about the right to life, liberty, and happiness.

The preeminent work on it was done here at Northwestern by Professor Steve Calabresi, and he calls these Lockean natural rights guarantees. So they go back to basically ideas of John Locke, and natural rights, and state of nature, and all that. There’s kind of the core original ones from Virginia and Pennsylvania from 1776, but they proliferated all over the place, and states take their own little spin on it. And so, Montana’s especially took a spin on it. It has a right to a clean and healthful environment, which is more of a positive right that probably will be discussed at some point the next couple days, because it and Pennsylvania share that they have this positive right to an environment, but it also has this other right, which is the right of pursuing life’s basic necessities. Incredibly, incredibly unique. It is only in the Montana Constitution.

What does that mean? Well, what happened was that the Montana Constitution in 1972, there was a suggestion to have a kind of welfare right to provide for the needy. I was just talking with Andrew earlier. New York has something like this in its constitution. And although the delegates were supportive of the suggestion to have this language in there, they said, "You know, that’s kind of tying the legislature’s hands, and we’re going to have, you need to have positive legislation to have welfare.

And so, how about we turn it around, so instead it’s just kind of a statement of principle about pursuing life’s basic necessities?" Well, what does that mean? To me, it reads like pursuing life’s basic necessities means you have some kind of right to earn a living. You have protection from, say, overregulation if you’re trying to get into business, like maybe those vegetable sellers I was talking about in Minnesota.

And so, the Montana Supreme Court, which is usually a really progressive side of the spectrum of court, it has interpreted this to be a right to earn a living. Now, how, what are the, how does that come out? What level of scrutiny to use has been debated, but there is something there if you’re going to, if you’re restricted in your ability to earn a living that you have that as a challenge.

So that’s just a couple examples from a couple states of these provisions. I should, in my notes, I should throw one more out there, and that is the state of Maine just a couple years ago amended its constitution to have a right to food. But again, it’s not a positive right to food, so if you can’t provide for yourself. It’s a right that, to grow your own food, and to raise livestock for your own food, not to trespass, but to provide for you and your family, there is now that right. What does that mean? I don’t know, but we did, recently, my colleagues filed a lawsuit about a family that were keeping backyard chickens and the zoning officials were not happy about that. And so, we’re fighting for their right to have these hens in their backyard, and we’ll see where that goes.

Alicia Bannon: Thank you. I’m going to shift gears a little bit to talk about something that’s already come up in some of the earlier conversations today, that a big issue that comes up in the context of state constitutional development is a tendency in many states on many issues to interpret state constitutional rights in lockstep with the federal Constitution, even when you have these unique provisions and historical differences that might be relevant.

And so, I’ll turn first to Justice Long, and I know you’re writing about this as well. Rhode Island is a state where lockstepping is quite common. And so, can you give us your perspective on when lockstepping is appropriate and when it might make sense for judges to be reconsidering that approach?

Hon. Melissa A. Long: Thank you, so I want to echo one of the comments made in — I think it was Michael Waldman this morning — was talking about the importance of these symposia and the idea of thinking and sparking the learning of new information.

I had the great pleasure of attending the Brennan Center symposium on state constitutional law in February of 2024, I think it was, and I really have to say that I hadn’t given that much… that was the first time I’d really heard lockstepping, and maybe I shouldn’t be admitting that in this audience, but I went to law school at a time when there were no state constitutional law classes offered at my law school. We just didn’t really have a focus on state constitutional law.

So this sense of lockstepping was so interesting to me at the symposium, and I’ve learned quite a bit about it since then, and I feel like as it was being described, I thought, “Oh, yeah, no, Rhode Island does that for sure.” We are a lockstepper, and it’s so interesting to me in New England — six states in New England — Vermont, Maine, and Massachusetts are definitely not lockstepping states, and my favorite story actually about Maine that I’ve learned is that in 1857 they rejected Dred Scott. They said, “That’s ridiculous and we’re not going to sign on to that.”

And so, there’s a long tradition of a primacy approach in some of our sister states. It’s also interesting to me, given that we are Rogue Island, and we’ve been called other things that maybe are not even as kind, that with this tradition of, you know, we refused to go to Philadelphia in 1787. It went beyond that. We really dug in our heels and it took the Senate passing legislation saying that the United States would not trade with Rhode Island in order for Rhode Island then within days to actually finally ratify the Constitution in May of 1790, and even at that, it was a very close vote. It was like 34 to 32, and they had to get a couple of the anti-federalists to leave the audience, or leave the convening in Newport.

So with that backdrop and knowing that other states in our close proximity are not locksteppers, it’s sort of interesting to me that I was sitting in New York two years ago thinking, “Wow, but we, Rhode Island really is, we tend to lockstep.” That was certainly my sense. And so, I have undertaken a little bit of a study of this. I went on the court in January of 2021, and decided to, as part of this research endeavor, take a look at some data, and it’s a small, relatively small sample size, but in Rogue Island with these life tenured judges, we’re one of nine, I think the number is nine, nine states with no intermediate court of appeals. We are primarily a reviewing court. We don’t sit in panels in Rhode Island. We publish an opinion or an order in every case that we decide on the merits, and we do allow self-represented litigants to argue before us.

With that backdrop, the number of cases that we’ve heard, if my math is right and my counting skills are right, we’ve heard 510 matters that have been submitted for decision on the merits since I’ve taken the bench, January of 2021, until May of the end of last year’s term, May of 2025. For those 510 matters, we issued 455 opinions and 55 orders.

Digging a little deeper on those, in 29 of those opinions…and in none of the orders did we cite to or refer to any rights protected under Article I of Rhode Island’s constitution, but in 29 cases we cited or referred to individual rights under our state constitution. Five of those were dealing with provisions that don’t have an analogue for the federal Constitution.

So what I’ve come to is about 24 opinions in the time that I’ve been on the Rhode Island Supreme Court that cite to or refer to rights under the Rhode Island Constitution that have an analogue. Four of those didn’t actually reach the constitutional question. Either it wasn’t preserved or it wasn’t necessary to the decision on the appeal. So in that time, we’ve actually only heard 20 cases where we’ve generally reached the issue where there is an analogue, and in those cases, we tend to be in lockstep. The areas that we’ve seen in that time have been Confrontation Clause, search and seizure cases, I think one or two due process cases arising in a civil context, right to counsel, and right against self-incrimination.

So from that, again, limited sample size and giving some thought to this, certainly, it did, I think, give a sense to me that my sense was correct, that we are lockstepping when we see it. And I think that there are a couple of reasons for that, obviously one being the limited opportunity to actually take these issues up. If we’re not seeing it that often, if the lawyers aren’t raising the issues in the lower courts and it’s not preserved on appeal, then we have very limited opportunity to interpret those provisions.

I also think, of course, in that time, I have been one of the locksteppers, and even, I have to admit, since going to NYU in February of 2024; and I thought to myself, “Why does that happen?” And I think one of the reasons why is what I think of as being familiarity with, and fidelity to, the shared values and principles that we have in, that I think we have in this country.

And so, and sort of the sub-part A, of course, is stare decisis. We have all of these cases in Rhode Island that say, “Here is what we do when we see a search and seizure case.” And so, this is how we interpret it. So we have precedent that says unless there is, “Absent any widespread uncertainty concerning the appropriate scope” — this is specific to search and seizure — “Absent any widespread uncertainty concerning the appropriate scope of Fourth Amendment protections, we on the Rhode Island Supreme Court accord the federal interpretation deference when construing our state provision, Article I, Section 6.”

And we will… we’ve also said that we depart guardedly and with principled rationale, and I will note that one of the cases that we’ve departed guardedly and with principled rationale is, we don’t have DUI roadblocks in Rhode Island. So we are very different from the Fourth Amendment on that. So I think limited opportunity, familiarity with and fidelity to shared values and principles, and the third thing that I think comes to mind is a respect for and appreciation of the relative experience of the federal courts in analyzing these shared values and principles. And I’ve certainly done that in cases where I’ve thought about, we’ve had, where I’ve written separately, and I’ve thought, “Well, wait a minute, this is a due process issue, and what are we really thinking about when we do this?” And going to federal cases, United States Supreme Court cases or cases in the First Circuit, to say, “I think this is really persuasive.”

And so, I promise you that I’m thinking more now about my sister states about that. But certainly in that, in my sample that I’ve just referred to, I think I often was thinking about these values in this way, and I think it comes down to also a sense of judicial restraint and legitimacy. And I think it was Professor Rodriguez this morning who was talking about the cynicism around doing this. Is there a question, are you cynical if you see the states doing this?

And I think that there is certainly some sense, and I think that’s interesting too, and I think it may be because we have life tenure, because we could be running roughshod, but no, we recognize what our lane is, we have to respect precedent. And so, I think in the absence of lawyers making arguments about principled reasons why we should depart, looking at our precedent with our clear deference that’s built into our structure for the legislature and the legislative pronouncements on things, I think that there is a certain amount of lockstepping that is a sign of judicial restraint and legitimacy.

But I think also there is a time now where with what is a paradigm shift, what appears to be a paradigm shift, at the United States Supreme Court vis-a-vis original public meaning of a different document, a distinctly different document, I think we need to be thinking about whether or not we should be continuing to, whether that actually is showing restraint, and if among the principles we need to be thinking about are transparency and accountability in the legislative branch. Then I think certainly we need to be thinking about if we’re using a different document as the basis for our interpretation, we really need to be thinking about that.

Alicia Bannon: Thank you, and, well, Martha, please.

Martha Davis: Yeah, so Alicia encouraged us to interject. So I was just going to say…

Hon. Melissa A. Long: Yes, you’re next.

Martha Davis: Rhode Island is one of the few states that has really embraced Geduldig in a prior decision. I think it was in dicta, but they went out of their way to say, “We agree with this idea that pregnancy discrimination is not sex discrimination.” Now, that was a while ago, maybe…

Hon. Melissa A. Long: Interesting.

Martha Davis: But as you say, the courts have to wait to see what comes to them. Maybe it would be something that they would revisit given the amount of critique…

Hon. Melissa A. Long: Yeah.

Martha Davis: Of that decision, but they haven’t so far.

Hon. Melissa A. Long: Interesting.

Alicia Bannon: Andrew, did you want to jump in?

Andrew Hammond: Not specific, well, I think I can build on the Justice’s…

Alicia Bannon: Please.

Andrew Hammond: Comments here. So I think as not a constitutional law scholar, but as someone who thinks about civil procedure and administrative of law and state public law, I think it’s one thing I don’t like about constitutional law scholarship, and in particular Justice Kennedy’s approach to federalism, is thinking about the federal government and federal courts and state government as kind of equivalent or supplementing sovereigns, right? That you can kind of swap out a federal court for a state court, or you can swap out a state legislature for Congress, and I just think that kind of formalism obscures so much of what state courts do. I think I can also make this case for you with state legislatures if you catch me during a break or something, but I won’t inflict that on you. I’ll leave that for my students next week.

But for state courts, state supreme courts, they’re also running the judiciary. They are thinking about the administration of justice full stop in their states. Chief Justice Roberts has that responsibility, and he has a kind of apparatus, including the judge I clerked for in the Northern District here, Judge Dow, who’s now serving as his counselor. But the state courts are doing lots of different stuff related to running the judiciary. That’s really different from how even a chief judge of a federal court of appeals thinks. The docket looks really different. The U.S. Supreme Court has no mandatory appellate jurisdiction, right?

They’re very, I don’t know if there’s another, it’s really uncommon to have the highest court in a country get to decide what cases it takes, and query whether we think of a court, we should think of a court like that. We tend to think of legislatures as saying, “We’re going to work on this issue this session, and next, we’re going to wait on some other issues.” That’s kind of how the Supreme Court gets to think about its docket. Query whether the emergency docket changes that for them, but the state supreme courts, you don’t get to pick your cases, right? So then the question becomes how are we going to allocate scarce judicial resources to construing state constitutional provisions?

And having worked for the former chief judge of the Seventh Circuit, Judge Wood, you’re always looking for some relevant case, some kind of persuasive authority. Is there a really good district court opinion on point? And when you’re working on these opinions, you’re reaching for stuff, and I think it’s just important to remember that state supreme court justices are looking in part to federal law because of its availability, because of the kind of sociological, how you are kind of socialized into the legal profession.

And so, I don’t love the lockstepping framework, frankly, because I think it kind of obscures that state court judges have a kind of different role. Frankly, I don’t think the briefing is as good. I mean, the U.S. Supreme Court benefits from great amicus briefs from the Brennan Center, and from bunches of other organizations.

But the Seventh Circuit doesn’t get a lot of amicus briefs. State supreme courts don’t get a ton of amicus briefs. And so, I think just really kind of having an appreciation for resource mismatches between our federal and state judiciary. Scott Dodson has a great paper about this called, “The Gravitational Force of Federal Law,” and then Diego Zambrano has a great paper in U. Chicago’s law review about kind of federal expansion and state court decay, and Zambrano, he teaches at Stanford. He actually thinks the federal government should actually fund state courts, given the fact that 98 percent of civil litigation in this country happens in the state courts and not in the federal courts.

So I just want to kind of put as much cold water as I can in a few minutes on the kind of formalism that sometimes we fall prey to in constitutional law scholarship.

Hon. Melissa A. Long: Yeah, and if I could just jump in…

Alicia Bannon: Please.

Hon. Melissa A. Long: Really quickly, I think it’s a really excellent point. Again, I can’t, my colleagues from Wisconsin and North Carolina, of course, have intermediate courts of appeal, so they may be in a slightly different posture, but we do have a discretionary docket, and we do take some cases, but our bread and butter is the mandatory review and was “substantial justice” done. And I think when you’re talking about 95 percent of all cases being filed in state courts, and you’re talking about many criminal cases involving liberty, and the heavy dockets that those trial lawyers have, and their resources for briefing these issues, so that they are well preserved for the trial court to be in the record to come upstairs to us, there are a lot of reasons why I think, again, those trial lawyers often are looking at those shared values and principles and they are saying, “Fourth Amendment and Article I, Section 6,” but without giving any real great discussion of it. So very good point. Thanks.

Alicia Bannon: Would anyone else like to speak to the lockstepping question? Or I can…

Anthony Sanders: I, yeah…

Alicia Bannon: You’re sitting there pondering, I feel…

Anthony Sanders: No, I don’t want to, I don’t want to hog time from the rest of our panelists, but Alicia knows I’ve written for State Court Report about this a few times now, and I think what you both have just said is absolutely right, that there’s a lack of lawyers making these arguments, and when they do make these arguments, there is not a lot to draw from about the specific state and maybe the original meaning of the Ohio Constitution of 1851, to draw from Judge Sutton from earlier, and why is that? Well, there’s 50 of them. There’s one for the United States. It’s a lot easier to look into that.

And the maybe one part that can help with that, and it has been helped in the past, but should more in the future, is specific scholarship on individual state constitutions. If you’re looking for a good student note, there’s a wealth of opportunity there.

Alicia Bannon: Thanks.

Ting Ting Cheng: And I’ll just add that I think what’s happening with the state ERA work is the reverse of lockstepping in a way. The opportunities at the federal level to really make some advancements through the ERA and in gender justice are quite restrictive or non-existent in the moment. And so, the work of state ERAs is to actually serve as a gender-justice laboratory and to use these state ERAs to create the laws that we want to see.

And then the hope is that, in the future, this creates this kind of legislative record body of work that then will inform the way that the federal ERA gets interpreted in the future. So it’s kind of like reverse lockstepping, hopefully. I was going to say something else, but I forgot.

Alicia Bannon: Well, I’ll just follow up, because I had a follow-up question for you, which is one of the things that I think is so interesting about the work that you’re doing, Ting Ting, we’ve been very, for good reasons, we’ve been very court-oriented in this conversation. You’ve also been thinking a lot about how these state ERAs can also be relevant to other government actors, like state attorneys general, that these can be used as also tools in policy debates. So I’d love to just hear a little bit about your thinking of how these provisions can be relevant also outside the courtroom.

Ting Ting Cheng: Yeah, so we have more than half, half the states have state ERAs, but I think that they are underutilized, under-considered. Maybe we’ve tapped like 10 percent of its potential overall. I do think that in order to achieve sort of the work of gender justice through these ERAs, we have to engage in both a very robust legislative and litigation strategy.

I see that happening at the federal level, and the same applies to sort of state constitutional reform to add gender equality. What I’ve also noticed is that with ballot initiatives, it’s a highly collaborative process from the very beginning with elected officials, and advocates, and a grassroots crew of coalition partners from the very beginning, and certainly in the case of New York, it was like a mission statement from the beginning that we want a very robust document.

We wanted disparate impact analysis, which would consider how neutrally written laws would disproportionately impact gender versus just intentional discrimination, which is the federal standard for adjudicating discrimination, right? So, and that was a very collaborative process from the drafting with elected officials. And so, once we achieve that win, and we amend the state constitution, I think legislators should be given a little time to think through what the new state ERA does, and how to kind of bring life, and give it, do the meaning-making that this constitutional language requires, because it really is about building up the meaning that didn’t exist before, you know?

An amendment is not a resurrection or an affirmation of existing rights. It’s actually new, it’s supposed to add something new to the constitution. So I think the legislators play a big role in that. Now, after we win, to go ahead and then sue the legislators or sue the state for failing to implement the state ERA, I think that it’s kind of, I think that there’s a time and place for legislation, for litigation for sure, and it’s important, but I think legislatively, first of all, we want to build on the coalition that added the ERA to begin with and have that be the foundation.

I also think that pursuing a litigation strategy immediately after securing an ERA creates this dynamic where we basically turn an ally into a legal adversary immediately. And what I’ve noticed in places like Nevada where we added this robustly-worded ERA and then afterwards the ERA was used to challenge their state’s ban on Medicaid funding for abortion is that you have the attorney general, the solicitor general’s office in Nevada, huge ERA advocates both on the federal and the state level, they have to then defend their state’s policies, and sometimes their discriminatory policies, and they can then default to things like a Geduldig-like legal reasoning.

It makes no sense, and there’s a huge gap in education there, of course, but I do think that there’s a time and place for litigation. And also query what are we asking judges to adjudicate, and do they have the actual expertise to make some of these decisions? It’s a long-term process of giving the ERA meaning in a modern way. The other thing to think about too is I think litigation is really effective for kind of attacking existing laws and to kind of update language that is now outdated. But like I said before, it’s not just about the laws, but it’s about creating substantive meaning around the ERA, and that’s a much longer term, I think, a legislative project that has to be done.

Alicia Bannon: Thank you.

Martha Davis: So just one more thing. I just want to, (clears throat) excuse me, make sure that we’re thinking not only about how state, how federal courts might influence state courts, the lockstep, but also how state courts might influence the federal court, and that’s really maybe a call to state courts to be innovative, to think that they can come up with a better approach than what the federal court has done. So when I talk about Geduldig, one of my concerns is that the ERA is great. ERAs are great, we’ve got 29 of them, but we’ve got 21 states without that, that have equal protection-type protections that we shouldn’t give up on, that we should still be trying to interpret in ways that are positive.

Andrew Hammond: Yeah, just to jump…

Alicia Bannon: Please.

Andrew Hammond: On a couple things, I mean, with the, oh, Justice, did you want to…

Hon. Melissa A. Long: No, no, no, go ahead.

Andrew Hammond: Okay. The one interesting case study that is not constitutional law is the ways in which state supreme courts led the way on preclusion issues. And so, the law students in the room are now, their eyes are closing. But if you look at the demise of mutuality requirements for collateral estoppel, that was actually the California Supreme Court, a bunch of state supreme courts, and then the Supreme Court. The U.S. Supreme Court kind of throws in the towel in Parklane Hosiery in 1979. It has to do with the ALI and the Restatement Second of Judgments. So I’ve always thought that’s an interesting case study of how that came about.

Also, to Martha’s point about 29 versus 21 states, there’s a lot of good empirical research that we basically have a two-tiered public interest bar in this country. We have public interest lawyers in New York and on the East Coast, we have public interest lawyers on the West Coast, and then in a few cities in between, the one that they always cite is Chicago, there are public interest lawyers who are funded, who are getting attorneys’ fees and the like. Joanna Schwartz at UCLA talks about this as civil-rights ecosystems.

Also true that a lot of states don’t have a non-LSC-funded legal aid organization, meaning that the impositions that Newt Gingrich and House Republicans imposed on legal aid lawyers have real bite in states off of the coasts. And so, part of what I think you need to think about with kind of positive social and economic rights is less about what’s in the text of the constitutions, but what lawyers are there that are going to bring the cases, and that’s much more of a kind of law and social movements approach. And I just have to put in a plug for Martha’s book. If you haven’t read Brutal Need, which is about the kind of welfare rights litigation in the '60s and '70s, I would really commend it to you because it’s a really useful case study about thinking about some of these dynamics among kind of national organizations and local legal aid attorneys.

Alicia Bannon: Thank you, Justice Long, and then we’ll turn to some audience questions.

Hon. Melissa A. Long: Yeah, and so, I just wanted to jump in, and of course say Martha, of course, is from Massachusetts, where the other Chief Justice Marshall wrote the beautiful Goodridge decision in 2002, which did exactly what you’re talking about.

And to the point of these clusters of places where lawyers want to go, of course, New York, Chicago, California, the whole California coast, all very exciting, but this is where I do my plug for Rhode Island. We’re in between Boston and New York. We are more affordable, and I think, I say it only partly in jest, I think that when law students are looking at doing this public interest work, maybe going to some of the off-the-beaten-path places you can get some really good training, and there is just a wealth of resources.

We did have a constitutional convention in 1986. Our committee reports are available, including language from the Committee on Citizens Rights that declared an intent to provide an independent foundation for individual rights under our Article I, Section 2 and our Residual Clause, Article I, Section 24, to say also if the, if there is retrenchment, and these are my words, not the words that are in the committee, but the shorthand is if there is a pullback on the 14th Amendment, then Rhode Island is saying that we have these as independent foundations for individual rights. And there, we just need really excited and eager lawyers to come to places like Rhode Island to really dig in and help educate the judges in individual cases, the right cases and controversies.

Martha Davis: And you can even live in Boston and commute. (Melissa and Martha laughing.)

Hon. Melissa A. Long: One of my law clerks lives in Boston and commutes.

Alicia Bannon: Students, take note. We have so many great audience questions, so I’m going to try to turn to at least a few. One question is how much do state constitutions borrow from one another? Do they differ significantly or do they differ significantly based on a state’s unique geography and population?

Anthony Sanders: I’ll take a little bit of that. Yeah, they differ a lot. There’s kind of a core that just about every, just about every state has, say a due… not every, but just about every state, has a due process clause or a “law of the land” clause, but they vary in how they’re written, and it’s kind of like you could probably make concentric circles about, like Venn diagrams if you want, about how much is the same.

How are they drawn from each other? It’s a history thing. So the Ohio Constitution of 1851, for example, they had the earlier constitution from 1803, I think, but then they had newer constitutions that have been adopted since then. There’s the U.S. Constitution in the background. But the funny thing is that throughout history states have more borrowed from each other or have been inspired by each other than the U.S. Constitution itself, although that’s definitely in the background.

I also want to add, if you want to litigate at least the kinds of things that my colleagues do, the Institute for Justice operates in all 50 states. And so, we’ve never filed a case in Rhode Island, but we’ve looked at some there. So maybe one will be…

Alicia Bannnon: Interesting…

Anthony Sanders: Coming sooner or later.

Hon. Melissa A. Long: Don’t tell me about it, but… (Audience laughing.)

Martha Davis: I’ll just say apropos of that, in addition to the similarities between state constitutions, state courts sort of address that in their opinions, right, that they’re often using, looking at what other states are doing in similar situations. So there’s a very strong comparativist approach, and I’ll just add that part of that is not just domestic, but also sometimes international.

And earlier today, Chief Justice Sutton mentioned Hans Linde, who was someone who came from an international, somewhere else, but he used international precedents as persuasive in his opinions. And there’s several other, Chief Justice Marshall from Boston, from Massachusetts also. So there’s a way in which these comparative examples that maybe draw on similar provisions end up being, also influencing the outcomes.

Andrew Hammond: Yeah, and for children’s constitutional rights, there’s a lot of opportunity for state courts to look at international, in part because the United States is the one member of the United Nations that has not, has yet to ratify the U.N. Convention on the Rights of the Child. So there’s this flourishing of children’s rights litigation in South Africa, in Europe, in Latin America. Really interesting things happening with climate litigation on behalf of kids. Like when you mentioned Montana, I was thinking of the Juliana litigation.

That’s a way to be in conversation with litigators, children all over the world, and there’s a kind of total silence at the federal level that’s exacerbated, again, on an institutional level. The U.S. created a U.S. Children’s Bureau in 1914, involved in child labor and other issues at the federal level. Now, we have all these states that have child advocates and state ombuds. That looks actually a lot more like a different kind of public law model that we see outside of the U.S., but we don’t really have, we don’t have a national child advocate at the federal level.

And so, there’s a sense in which the U.S. at the federal level is becoming kind of a backwater on children’s rights, and I think we have to just contend with the fact that childhood is an increasingly dangerous proposition in the United States, because of gun violence, because of climate change, because of the child labor issues, the total dismantling of our public health systems, and the defunding and dismantling of public education.

It’s not an accident that Progressive Era-statecraft was all about children, and that was the first Gilded Age, and I think we’re really in the second one, and I think it’s, like I said at the start, this is a space to watch, and thinking about kind of international connections is going to be really important, because I’m not expecting national federal leadership on these issues.

Alicia Bannon: I’m going to combine two more questions from the audience. One is, are there, other than abortion rights, which we’ve spoken about, what are other trends with respect to individual rights that you’ve been seeing? And then also, are there areas where state courts have generally just been more protective than federal courts with respect to certain rights?

Martha Davis: Education, right? Where the federal, there is no federal constitutional protection for that directly. We’ve mentioned the environment where there are six or seven maybe constitutions, including Rhode Island’s, right, that mentions the environment. I think Rhode Island, like Massachusetts, it hasn’t been found to be actionable. Is that right, or maybe was there one case in Rhode Island?

Hon. Melissa A. Long: I’m going to sort of step away quietly. We might have some litigation coming up…

Martha Davis: Okay.

Hon. Melissa A. Long: But we do have two provisions, yeah…

Martha Davis: Yeah, yeah…

Hon. Melissa A. Long: We do have two provisions that are shoreline access and related to natural resources.

Martha Davis: Right, but so, that’s an important area, and growing area, and an area also where there’s a movement to try to increase the number of state constitutions that address that issue.

Anthony Sanders: And there’s been a little bit of a trend on increased protection on property rights. It’s nothing like what Judge Sutton was describing this morning, I must say. We still have zoning from “sea to shining sea,” despite all the evidence of how terrible it is on house affordability. But there is some pushback in that area in state courts that you don’t get at the federal level.

Alicia Bannon: The next question is thinking specifically about the Ninth Amendment, how do state courts weigh conflicting unenumerated rights?

Anthony Sanders: Well, I think we have two minutes or maybe a little bit more.

Alicia Bannon: You can go in a minute…

Anthony Sanders: There’s a book on this you can download for free. Some random person wrote some book… on “Baby Ninth Amendments” in state constitutions, and available from University of Michigan Press. And so, you can check that out, but how do they weigh unenumerated rights? It is as confused in state courts as it is at the federal level, but if state judges took their state constitutions a little bit more as a textual matter, I think that there would be more protection of unenumerated rights.

Hon. Melissa A. Long: Yeah, and I would just say that, again, we do respond to what the lawyers bring up through the courts, and I recognize that this may actually be an area that civil litigators may have a little bit more flexibility than the criminal lawyers who are practicing in our courts, but really thinking through strategies around provisions like Article I, Section 24. I just, I don’t, I don’t know that I had ever really focused on Article I, Section 24 until I started doing the research in my interest on state constitutionalism.

Alicia Bannon: And I should say the random person is in fact, Anthony, and I commend this book. It’s a fascinating account of these Baby Ninth Amendments.

We just have a few more minutes, so I’m going to turn to moderator’s privilege of a final question, or maybe a combination of two, and you can answer as you wish. So the first is, we are in a law school, so I want to encourage homework assignments. What are some of the research questions? We’ve talked a lot about things that have been under-explored, under-researched. What are some of the research questions you’d like to see answered about state constitutions? And then, and you can answer one or both, is there a particular provision you’d like our audience to be thinking about for the rest of today? It could be a favorite provision, a provision you think is particularly interesting, or maybe under-explored, and I’ll just, I’ll go start with Anthony and go down the line.

Anthony Sanders: So something I’d like to dig into at some point is this real big question, big picture question, of I think American judges in some way are British, and they don’t realize it, because we come out of the common law tradition, and I love the common law. The common law tradition is great. I’ve written about how it’s supportive of all kinds of things, and relationships between people, and stability, and all that, and liberty. And yet we also live in a written constitutional system, which is a higher law system, which we all know. Everyone, like John Marshall, talked about this. It’s all in the background, but when we actually start interpreting text, judges often kind of, I think this goes to a little bit of the lockstepping, goes into this kind of more common law process, right?

I don’t mean common law constitutionalism, like David Strauss writes about, but the common law process, and to some extent, that doesn’t do justice to these people who spent months and months in these conventions to get the language exactly right. And the balance of that I think is something that could be… it’s been written about in some ways, of course, but it could be explored a little bit more. I’m going to leave you with one thing, and that is there’s a provision in the Minnesota Constitution which is only in two other constitutions that all land is “allodial,” meaning free, it’s not feudal. It’s never been used in any way.

I learned a couple years ago, I did a blog post about it, and I got a lot of emails from people who were angry about paying property tax basically. And so, I learned maybe I shouldn’t write so much about allodial clauses anymore, but it’s in there, and it means something, and what does it mean? I don’t know, but it would be cool to write about. Just hide your email. (laughing)

Hon. Melissa A. Long: So this is less of a research pitch, I think. This goes more to, I think, your obligations when you get out of law school, and even maybe some while you’re still in law school, and that is if there are those of us who’ve been in this profession for decades, which is sometimes hard to admit for myself, and just learning about state constitutional law, and you’re learning about it now, how can you spread the word with your peers?

I think I’m so grateful to the Law Review for doing this today. When you were making the point about child endangerment there, to me, the backdrop is the fact that Gen Zs, the staggering numbers of Gen Zs who don’t actually believe in democracy.

And so, it’s not really a research request, more one of a pragmatic action item. You all are the experts on your generation, and you need to figure out how to spread the message about democracy and state constitutionalism as part of that, so that we can continue to achieve a more perfect union.

Andrew Hammond: It’s hard to follow that, (panelists chuckling) in a good way. The area of state constitutional law that I’m getting increasingly interested in is kind of what I would consider legislative due process. So from 1L constitutional law, there’s kind of an enrolled bill doctrine. A lot of this isn’t justiciable. There are single-subject rules in state legislatures. There’s requirements to read the bills three times. Those are in the constitution.

I think that, I’m very concerned about democratic backsliding in state legislatures, and I think thinking about litigation strategies in that area is useful, and I’ll just give a brief anecdote. Before becoming a law professor, as a legal aid attorney at the Shriver Center here in Chicago, and I was, I spent all my Thanksgiving break explaining why the Rauner administration had a crabbed and kind of cramped reading of a public benefits program that was going to be extended to mixed status families and immigrant families.

And I was so proud of this letter, and I sent it to my supervisor, and he was like…and I was like, “We’re going to convince them that they’re wrong,” and he’s like, “Well, even if we don’t convince them that we’re wrong, we can get them in the JCAR,” and I was like, “What’s that?”

And it turned out that there was, there’s ex-post legislative review of agency regulations in Illinois. And so, there was this whole other stage in our advocacy that I wasn’t aware of, because I had worked on, done stuff on Capitol Hill, and just like having an appreciation for legislative process at the state level can make you a much better lawyer and a much better advocate.

Martha Davis: So I’ve got a very small research question, which is Massachusetts has a provision in the state constitution that provides “freedom from excessive and unnecessary noise,” and I think it’s the only state constitution that has that. I don’t know why, what’s particularly noisy in Massachusetts, and then in terms of what I’d like people to think about, as I mentioned earlier, the kind of connection between state constitutions and international law.

Alicia Bannon: Yeah.

Martha Davis: State constitutions in our system are the places where economic and social rights are protected, and that there’s not much to look at federally on that, but there’s a lot internationally. And so, just thinking about those connections is, I think, important.

Ting Ting Cheng: So just building on what Martha just said and what everyone sort of noted about international law, my first job after graduation was clerking at the South African Constitutional Court, which was created to implement the new constitution written at the end of Apartheid to essentially make sure that something like the legal regime of Apartheid could never, ever happen in the country.

The document, as you all know, guarantees socioeconomic rights, and is a very sweeping human rights document. It, at the time, I wasn’t there at the end of Apartheid. I was there much later, but it’s a project of democracy building, and it’s about being inspired, borrowing from other jurisdictions, other legal theories to build out a new democratic South Africa.

And similar to that experience, I think that we’re in a moment right now where we’re building out the new democracy of America. There’s the legal scholar Eric Foner, who’s written about The Second Founding, which has to do with how the Reconstruction amendments represented kind of this new founding of American constitutional legal order by very radically rooting citizenship into the… and individual rights and civil rights into the constitution itself.

And so, I’d like to just encourage all the students in this room to think about the ERA, gender justice, and just broadly the kind of equality movement as the third founding, and to be extraordinarily creative, maximally strategic with these documents at the state level to really advance rights that are very much shrinking in this moment.

And one kind of state…I guess one thing that also inspired me about what you said about Montana’s constitution is it’s not just about taking precedent and applying it directly in a similarly-situated situation to something else. I think being creative legally also means, there was a win in Montana under the supreme court that basically gave young people a special status to sue for environmental protection laws, right?

And so, that’s a really interesting theory to import into the gender justice space because I do think that young people are going to bear the burden of these abortion bans and restrictions more heavily than anybody else throughout your lifetime. So how can you import other legal theories for different causes that you’re working on? So I would encourage lots of creativity.

Alicia Bannon: Thank you so much for that. Please join me in thanking our panel. (Audience applauding.)

Kasia Wolfkot: Okay, thank you, everybody. There are snacks and coffee right in the hallway. At 3:15, we’re starting our breakout sessions, which are kind of more informal spaces where we hope for audience participation. Those will be “Criminal Sentencing and Protections for Incarcerated People,” “Repro Rights,” “Economic Rights and Economic Justice,” and finally, “Addressing Hurdles to Vindicating State Constitutional Rights.” They’re going to be in different rooms, and there will be volunteers in the hallway telling you where to go depending on what you’re interested in. So see you at 3:15.