Interpretive Methods in State Constitutional Law

The following is a transcript of the panel “Interpretive Methods in State Constitutional Law,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Friday, Feb. 8, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on how judges interpret state constitutions. The panelists — three active state supreme court justices — laid out different methods for interpreting state constitutions, explained why state constitutions should be interpreted independently of the federal Constitution, and discussed the many benefits of independent state constitutionalism, including the protection of civil rights and civil liberties.

Speakers:

• Justice Clint Bolick, Arizona Supreme Court
• Justice Anita Earls, North Carolina Supreme Court
• Chief Justice Loretta Rush, Indiana Supreme Court

Moderator:

• Jessica Bulman-Pozen, Betts Professor of Law, Columbia Law School

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Jessica Bulman-Pozen: I’m Jessica Bulman-Pozen, and I want to thank the Brennan Center and NYU Law Review for putting together this tremendous event. It is so exciting to be a part of this conversation, and I’m especially pleased right now to be moderating our panel on interpretation of state constitutions with three distinguished jurists.

Justice Clint Bolick of the Arizona Supreme Court, Chief Justice Loretta Rush of the Indiana Supreme Court, and Justice Anita Earls of the North Carolina Supreme Court. Thank you all very much for joining us this afternoon.

I understand from all of your opinions and separate writings [that there is] a point of agreement across the panel, which is, lockstepping is not the way to go. Lockstepping is the practice — much debated in state constitutional law literature for many decades now — of state courts, in interpreting state constitutions, adhering to or following federal interpretations of similar federal constitutional provisions.

So what’s wrong with lockstepping? Chief Justice Rush, could you start us off, please?

Chief Justice Loretta Rush: Yes. And thank you for having me. I just want to do a little bit of an intro on how I came to have this deep and abiding love for state constitutions.

I’ve been an attorney and a judge for 40 years. I’ve been chief for 10 years on my court. And it really wasn’t until I got on a court of last resort that it became glaringly apparent that we had to build up our arsenal of what we do.

And so one of the first things I started looking through [were] the early cases on the Indiana Supreme Court. The first case was about [a] horse thief. There were land squatters. There was a game called loo that was illegal. And then there was a case, and a slave, a young woman. She was 17. And it was four years after Indiana adopted its first constitution, which they did in 11 days, and we’re still one of the shortest ones out there. And [the young woman] started reading. She learned how to read because she would keep bar with her owner, and she read the constitution that said slavery was illegal. We had adopted it from the Northwest Ordinance. So she got some pro bono attorneys and filed a habeas action for her freedom. And she won. She won because the Indiana Constitution, long before the Emancipation Proclamation and the 13th Amendment, said slavery was illegal.

And then, the next year, Mary Clark was an indentured servant and she also brought an action. It really gave me pause to say, we’ve got this powerful document, but if people don’t bring the claims to enforce the rights that are there, they just lay dormant.

The idea of lockstepping goes against the idea of having dual sovereigns. And 98 percent of the cases are in state courts. I sometimes call us the government emergency rooms of what’s going on in society. (Laughter.) And if we don’t use that document and look at those rights — not just the rights that are worded in tune with the federal Constitution — we’re really doing a disservice.

Lockstepping is wrong on every level, because if you lockstep, then you sort of immunize the ability to expand your state constitution. If you decide you’re going to do it the way of the federal Constitution, then, one, it can be subject to review unless you — under Michigan v. Long, the applicant clearly says that it’s distinguished. And then you just don’t develop that body of law. I think, now more than ever, when you look at abortion rights, when you’re looking at ballot initiatives, when you’re looking at these issues, they’re coming. And the amicus briefing that we’re getting now is tremendous.

Last year, I was president of the Conference of Chief Justices, and we authorized the filing of Moore v. Harper case by the Conference of Chief Justices. I think it’s fundamental to democracy. Lockstepping would be counterproductive to our democratic principles. I could go on, but I’ve written a couple law review articles on it, and I get more enamored with state constitutional law by the day.

(Off-mic conversation.)

Justice Anita Earls: Thank you. First, let me say how enormously grateful I am to be here. I will confess that when I did run for office in a state of 7 million voters and people asked me, why would someone who’s been a civil rights attorney for 30 years want to sit on the state supreme court, I said repeatedly: Because I believe that state constitutions are an important and rich source of protection for individual rights. So I’m thrilled to see I wasn’t alone in that perception.

I totally agree about lockstepping, except that I want to burst the bubble on the notion that the federal Constitution is a floor and this is only a one-way ratchet. Maybe the cases I’m about to tell you about will be ultimately just anomalies, and no one will ever pay attention to them, so I’m a little reluctant to tell you about them. And our court has been considered a rogue court in some corners, so keep that in mind. But in two [voting rights] cases in 2023, our court said that our state equal protection guarantee is not as strong as the federal equal protection guarantee.

Our court said that the Arlington Heights standard to prove intentional racial discrimination was too easy a standard to follow. And so even though the trial court in both of these cases had applied the Arlington Heights factors to find that a state statute was enacted with intentional racial discrimination, the majority on our court said that that standard was too low. And in fact, both of these cases raised only state constitutional claims. There were no federal constitutional claims raised. And the court said we are going to have a higher standard, and under that higher standard, neither of these laws are intentionally racially discriminatory and can be put into effect. So a little caution (laughs), that was a case where [I] wanted lockstepping, if you please.

I think the other lesson from that is that there is a lot of activity and thinking around what state constitutional guarantees may mean. And so it is vitally important that we have a lot more attention and a lot more scholarship around what that should mean, how we should interpret our constitutional provisions, and what impact it can have for the jurisprudence.

Justice Clint Bolick: Just to add to the chorus on this point, first of all, I am so in awe of how many people are here and also listening. And as a New Jersey boy who found himself in Arizona, thank you for doing this in New York. I got real pizza last night for the first time in a long time. (Laughter.) So I really am delighted to be here.

I agree with the points that have been made for three additional reasons. First of all, it really emanates from our oath. As I pointed out in one of my many dissenting opinions, U.S. Supreme Court justices do not take oaths to the state constitution, but we do. And so we are oathbound, in my opinion, to enforce our state constitutions.

Secondly (and this was a point that Justice Brennan made in his seminal law review articles, and I say plural because there was an NYU Law Review article in addition to the more famous predecessor Harvard article), if you are a believer in federalism, you must be, in my opinion, a believer in state constitutionalism — because don’t forget that for most of American history, state constitutions were the primary and, as to the states, the only protection of individual rights. It’s only a recent phenomenon that we have come to look at the federal Constitution as the primary source of our rights, which I think has it exactly backwards.

Finally, when we look to the amendment procedures in our constitutions, different state constitutions can be amended in different ways. I have yet to see one that says when a federal Supreme Court decision changes the meaning of a federal provision, that has the effect of amending your state constitution as well. But that is exactly what happens if we lockstep and if the U.S. Supreme Court changes the interpretation of the federal counterpart.

Also, just to mention one case that I may return to because it’s the exemplar in our state for lockstepping versus giving independent meaning to a state provision: We have an express privacy provision in our constitution that was raised in a case involving whether it was necessary for police officers to obtain a warrant to obtain IP addresses and ISP data in a child pornography case. And the Fourth Amendment, which is incredibly inscrutable as far as its jurisprudence is concerned (laughs) — a majority of our court in a 4–3 decision held that in the interest of uniformity, we should lockstep and we should follow the evolving Fourth Amendment jurisprudence, and held that a warrant was not appropriate. The dissenting opinion of three out of seven justices that I authored instead went to the original plain meaning of the private affairs provision in our constitution, and we were interested to discover that private affairs — in 1912, when our constitution was adopted — had a very broad meaning that encompassed even business records that would not be protected by the Fourth Amendment. And of course, the U.S. Constitution not only was not applicable to the states at that point, but a privacy protection was not found to be in the U.S. Constitution for decades to follow. And looking at this private affairs provision, and the fact that private affairs under our constitution may be limited only by authority of law — which seems to be tailor-written to require a warrant when private affairs are intruded upon by the government — three of us found that it did require a warrant. But the fact is that by lockstepping, even though it is a completely separate provision that does not appear in the federal Constitution, it really has been largely drained of its meaning.

Bulman-Pozen: Thank you all for that. Maybe can I pick up at the tail end of those remarks with respect to the affirmative question: If we shouldn’t lockstep, how should we interpret state constitutions? And in particular — maybe, Justice Earls, I can begin with you here — are there particular interpretive approaches, particular interpretive methods that you find well-suited to state constitutions, perhaps as compared to the federal? In one of your majority opinions, the NAACP v. Moore case from 2022, in introducing the constitutional analysis, you wrote that we looked to the text of the constitution, the historical context in which the people of North Carolina adopted the applicable constitutional provision, and our precedents, as well as to fundamental principles of popular sovereignty and democratic self-rule. Our text, context, precedent, principles, the relevant considerations — certainly in that case, but as a general matter — are those the keys to good state constitutional interpretation? Is there a way in which this interpretive project has a distinct flavor state by state, based on either the constitutions or something about the courts in the state? How should we do state constitutional interpretation?

Earls: Right. I do think that different states have done more or less about what method they’re following in interpreting their own state constitutions. The case that you referred to came up in a very unusual fact pattern, which I couldn’t find anywhere else. That was a law passed by a General Assembly that the U.S. Supreme Court had said — more than half the seats were elected from districts that were racially gerrymandered. And then that General Assembly — after the election, so they knew who was going to be in the General Assembly, but before the swearing in — in that December passed a constitutional amendment, five proposals for constitutional amendments. In our state, to get to amend the constitution, the legislature has to first pass a bill putting the measure on the ballot, and then the voters have to vote for it. It’s a two-step process; you need both steps. It actually does make our constitution a little bit harder to amend, I think.

Just a footnote, we still have a literacy clause in our state constitution, and the legislature has not seen fit to put that on the ballot to change that.

Also maybe of interest, if you are thinking about how courts are elected, in 2018, there was on the ballot a constitutional amendment — not to get judges on the court initially, but if there was a vacancy — that changed how vacancies would be filled, and it provided for a nonpartisan merit-selection process with then retention elections. And the voters did not pass that. So apparently, in North Carolina, the voters like the fact that they can vote for their judiciary, but I digress. (Laughs.)

The case that you referenced, we could not find anywhere where a legislature had put onto the ballot an amendment that fundamentally altered the structure of the state government after they had been determined to be illegally in office. So that was a pretty unique situation.

I would say that the methods I laid out are a partial list. I think there are probably some additional ones that could be added, and so it might depend on where you’re coming at this. We were trying to interpret what kind of government does our state constitution set up and does it permit what the legislature had done. You might, for example, look[] to how other states have interpreted their state constitutional provision. So I think, for example, in the many states that have a right to a sound basic education not in the federal Constitution, I would say that it’s very helpful to look at how other states have interpreted their state constitutional provisions.

But, at the end of the day, whether we’re interpreting the state constitution, state statutes, the federal Constitution in an arena that the federal Constitution — the U.S. Supreme Court — hasn’t acted yet, that the same interpretive methods, the same interpretive toolbox, I would think we would apply across the board. I haven’t thought of — and these more brilliant people may have — why state constitutions necessarily have some unique way of going about interpretation. It seems to me just to be part of the judicial project.

Bulman-Pozen: Chief Justice Rush or Justice Bolick, do you want to jump in on that?

Rush: I would agree with that. In talking about how you interpret it, a lot of times, we do have to interpret federal rights because maybe they didn’t bring a state constitutional claim and something hasn’t been decided yet. Does forcing somebody to unlock their cellphone violate the Fifth Amendment, or the old foregone conclusion that the U.S. Supreme Court did? So we have to jump into that void to determine it. I think the interpretive methods that we do on our own state constitutions are very much the same with regard to originalism, textualism, and past case precedent.

There are a lot of states that have interpreted some of these items before. How have they done it? Has it been in a principled way that we can adopt? That’s why we’re the courts of last resort — because we get these things thrown at us on a regular basis.

But what you bring up with regard to the legislature, the other two branches of government are sort of at each other, and you’ve got to figure out who’s got the authority to act; it’s hard, because there isn’t a lot. Particularly coming out of Covid, can the legislature, when they’re out of session, call themselves back in session, or can only the governor? We have a preliminary ballot contest 9:00 Monday morning with regard to — and there’s not this body of law that you can go to. [Y]ou talk about artificial intelligence — have at it because, I mean. . . there is just not that body of law that you’ve got to determine where it is. And it’s all over the place.

And I think with regard to state courts, we’re seeing — I don’t know if you’re seeing it — we’re seeing many more preelection challenges, ballot challenges. In the time that I’ve been involved with our state’s judiciary, I’ve never had so many novel constitutional issues come our way. So the lens that you do it in a predictable manner, you can’t just be all over the place. I think there’s a lot to textualism and originalism. You’re back there looking at what the delegates said to each other; those reports are there. And then you can find one delegate on your side and then the dissent’s got a delegate on theirs — you can always find a delegate that was saying something back in the day that happened. But you’ve got to do it in a principled way so that it’s not changing, so that the litigants know when they come before you this is how they analyze.

That’s why I think writing on this and encouraging this — and we require the Indiana Constitution on our bar exam. Even though we’re a UBE state, we require another day. And I think that’s important.

I haven’t had a case come up through, you know, ethics — like, is it a Strickland challenge? Do you have that on post-conviction relief if you didn’t bring a state constitutional claim that maybe you could get relief? I think that these are all issues that we’re thinking about.

Bolick: Well, I am a textualist, and I used to use the terms textualism and originalism fairly interchangeably. Of late, I have some real concerns about the history-and-tradition approach that the U.S. Supreme Court seems to have embraced with regard to originalism, so I now refer to myself as a textualist. And that means that I look to the original plain meaning of the words that were adopted in our constitution — or, when the constitution was adopted, the intent of the framers of those amendments — which are actually usually far more explicit than our constitutional convention history, which is remarkably sparse.

There is one difference with a lot of state constitutions that I have found very useful, and that is a lot of state constitutions, unlike the U.S. Constitution, state their objectives in the body of the constitution. So the Arizona Constitution, the first two sections of our pretty long Declaration of Rights state that the purpose of our constitution is to perpetuate free government and that the purpose of the constitution is to protect individual rights.

Just to give you one example of where I found that very helpful: Justice [Goodwin] Liu mentioned in the last session — and I emphatically agree — we should find wisdom wherever we can, but there is a lot of received wisdom that state supreme courts have used over time simply adopting federal doctrines without thought attached to it. And the same is true with lockstepping.

For example, I believe that all 50 state supreme courts employ a presumption of constitutionality in challenges to statutes, and that comes right out of the U.S. Supreme Court. And our court adopted it reflexively without a moment of comment. And in a case in which that was significant, I wrote a concurring opinion saying, “Where does that come from in our state constitution? If the purpose of our Declaration of Rights in our constitution is to protect individual rights, and an individual walks into court against the government and finds the government has a presumption of winning, why — how is that squared with our constitution and its stated purpose?” So far, that is a position of one justice on the Arizona Supreme Court (laughter), but I hope over time to persuade others.

Bulman-Pozen: Justice Bolick, you’ve called the state constitution a freedom document, which seems in accord with this kind of independent interpretation as well as attention to the broader principles that might be noted in the constitution as informing the entire document. I wonder whether that attention to constitutions as freedom documents with protection of individual rights also informs the way you’re performing the textualism you spoke about. Textualism and originalism at the state constitutional level seem importantly different, even if it’s the same toolbox with respect to federal — as they are in applying to the federal Constitution — given the amount of text, as we were hearing about this morning. And you all well know the copious text —

Justice Bolick: Yes. (Laughs.)

Bulman-Pozen: — in state constitutions as compared to the federal. With respect to originalism, as you were mentioning, you will often have many provisions in the state constitution that have been adopted at different times by different publics through this amendment process, which on the one hand might legitimate a certain kind of originalism, but on the other hand might deeply complicate it as a matter of practice, trying to reconcile these different moments and these different understandings. Is that purpose-based approach — that sense of what the document — therefore helpful in that enterprise, or not so much? How are they freedom documents?

Bolick: So that is not an original idea. That is stolen from William Brennan, who made, of course, that point in his law review article. Every single state constitution has not only individual rights that are unprotected by the federal Constitution, at least literally, but also constraints on government power that don’t exist at the federal level as well. I have a whole list of Arizona provisions that I label “if only” provisions, and that is if only the federal Constitution also had this provision (laughs), we would be living in a different society.

But I really see these as no more than interpretive lenses. So, for example, if there is an express grant to a government agency or to the legislature, certainly those interpretive lenses would not affect the outcome of a textualist interpretation of the constitution. But where we are interpreting ambiguous constitutional text like the privacy clause — which I found to be far less ambiguous (laughs) than many of my colleagues did — nonetheless, it seems odd to say that this is not — this is separate and independent language, and it’s odd to interpret it in a way that does not provide a greater protection of individual liberty.

Earls: I just wanted to respond to the concept of the presumption of constitutionality in state constitutional interpretation, because, yes, I think it’s a modern development in our court. There’s some notion that in North Carolina, the constitution sets up the General Assembly as the preeminent branch; that we actually aren’t supposed to be three co-equal branches that check and balance, but that the legislature, being elected by the people — and, yes, judges are elected, but this is the theory — the legislature, being elected by the people, is closest to the people. That’s where the people’s will is expressed. And so, if they express the people’s will, there’s a presumption of constitutionality. I think that’s some of the logic behind it.

But beyond that, I hope there will be some academic attention to another new trend in the majority in our court to say that statutes are presumed constitutional beyond a reasonable doubt. I struggle to wrap my head around what that means, because I understand how evidence can prove a fact beyond a reasonable doubt, but — if you’ve got your facts, right — we are not fact finders. We take the facts as the trial court found them. If you’ve got your facts, and you’ve got a state statute, deciding whether that statute — either the statute is consistent with the constitution or not — and maybe those are hard calls to make, and maybe it’s hard to figure out exactly what the state constitutional language means — but it still seems to me that it is an intellectual enterprise. This notion that you have to somehow establish that beyond a reasonable doubt makes no sense to me.

Rush: Is it defined? Did they define what that means in the cases?

Earls: Well, it’s used any time that we want to uphold the constitutionality of a statute. (Laughter.) We don’t talk about it at all when we’re striking down a statute.

Bulman-Pozen: OK.

Bolick: Yeah. That was the original formulation of the presumption of constitutionality in Arizona. I have no idea where it came from, but basically our court defined it as the same standard that would apply to a criminal defendant. And, really, the legislature — perhaps in a state whose constitution does give outsized authority to the legislature, which ours does not — that the legislature would have the same right as a criminal defendant when it comes to adjudging the constitutionality of its legislation. I’m glad our court rolled back that doctrine, but I’m disappointed if yours is adopting it. (Laughs.)

Rush: Good luck. Yeah.

Bulman-Pozen: Can I ask you all how the composition of the court, the method of selection, the way in which the court is situated in the state landscape might inform some of these questions, either with respect to the relationship between the court and the legislature as you’ve just been discussing in that kind of review, or just generally with respect to the project of interpretation? Is that something that factors in or should factor in?

Rush: There’s a lot of scholarly work on that.

Bolick: Yes. (Laughs.)

Rush: And I’ve read several articles that they actually have data, and they show that the different ways — there are seven ways, different ways that justices on courts of last resort can be selected — that could really temper that.

I’m on a retention. We follow the Missouri model. The governor picks three nonlawyers [to the judicial nominating commission], the lawyers in the state vote for three, and then the chief justice chairs the committee that sends three names to the governor. We’re up for retention, nonpartisan, every 10 years.

This is going to be a different year, though. I mean with faith in courts down, because they don’t see state courts versus federal courts. It’s just all “you guys.” And it’s down significantly. So people — [Justice] Goodwin [Liu], you said that 36 percent of the people don’t like you in California. There’s going to be a lot of people that are going to the ballot box and just hitting “no” because they have this distrust in government.

Do I see it playing out? I don’t know, because when I meet with my colleagues from across the country — and again, this past year, I’ve spent a lot of time with my colleagues across the country — I see pretty principled people that are not swaying with the winds as much as what the scholarly articles say that we’re swaying with the winds. So I’m going to stick with that.

I do think it would be hard for you in states that have to raise millions of dollars to get on the ballot and then go through, and there’s just been a lot of attention in that. Never has my [statement of economic interests] been asked for as much as — have you — do you get a lot of requests, a lot of requests to get all your statements of economic interests?

Bolick: We file an annual disclosure.

Rush: We do too. We file — everyone files that.

Bolick: Not — (inaudible).

Rush: But now, we are getting all these requests from around the country to do that. So there’s a lot — every state — your chief would’ve gotten one. I think they send it to everyone.

Bolick: Oh, OK. (Laughter.)

Rush: So there’s a lot of interest in what we’re doing. I think that’s a challenge. I think that’s a real challenge.

Earls: I think that this actually raises questions of judicial independence as well. When you ask the question, does the politics of the state and how judges are selected impact the development of jurisprudence, it feels to me like you’re also really asking a question about what is judicial independence and what are the factors that threaten judicial independence. And I think from my perspective, there’s been a lot of attention paid to money, and whether that’s money in judicial campaigns or other ways in which judges or justices might benefit financially, and what impact does that have. But from my perspective, the biggest threat to judicial independence in my state is the legislature and our Judicial Standards Commission.

Part of the answer to this, it seems to me, is to strengthen our concepts of what we mean by judicial independence and how we protect it. But I also completely agree with what Justice Liu said [on a prior panel] about culture is the ultimate answer — the judicial culture on your court — but then how that is either tolerated/perpetuated/supported by the broader legal community. And ultimately, maybe the voters, but certainly the broader legal community. And in a state where judges are elected, if a judge is not displaying the kind of independence from political pressures — whether that’s in decision-making around cases, but also decision-making around the administration of justice. Justices make a lot of decisions about how the court system is going to operate — and are those decisions made in a way that promotes the fairness, promotes the public perception that courts are fair, independent, and unbiased?

You all need to give us some metrics so that voters — at least where we’re elected — can decide: Are the people who are serving me living up to those ideals?

Bolick: So, prior to joining the court, I had litigated in 16 states plus DC and the Commonwealth of Puerto Rico, and I had a good assessment of the lay of the land in those various states. Unlike the federal courts, which are in fact pretty uniform, state courts vary wildly in terms of their quality, in terms of their political nature and judicial independence.

In 2000, when I got married and my wife said we are moving to somewhere where it never snows (laughter), the state that went into my mind immediately was Arizona. And the reason was, in litigating there, I never felt like the fix was in. I never felt like I had an out-of-state bias against me. I felt the judges were all independent, intelligent, and very fair, even when the cases didn’t go my way.

Juxtaposed against that, I litigated in Texas, and I remember one time walking into the courtroom for a status conference, and the court was abuzz with conversation on one topic: Were the lawyers current in their political contributions to the judge they were just about to appear before? Guess what? I wasn’t. (Laughter.) And you know, I hate to ascribe the outcome to that, but in that type of system, it is very difficult not to.

Arizona is a merit-selection state, and I attribute the quality of Arizona’s judiciary to that. You find that judges from both political parties — I chair the Maricopa County Superior Court nominating commission and, holy cow, it doesn’t matter whether it’s a Republican or a Democratic administration — those judges are sensational. And the structure is really positive. Then, with the retention elections, we have a Judicial Performance Review [JPR] commission that looks at surveys from lawyers on both sides, parties, colleagues. And you would expect that system would be 50/50 — 50 would approve and 50 would not like it — because 50 percent win and 50 percent lose. And it turns out that for most judges, the approval is over 90 percent. Even the people who argue or who lose feel like they got a fair shake. And if you see a number below that, you know you’ve got a problem judge.

So the system has worked very, very well. In the last election, for the first time in history, we had some partisan influences and two judges who had been recommended for retention through the JPR process were defeated. If that hastens — if that process continues and worsens — it will be game over for merit selection. I think we all have a stake in preserving the systems that produce independent judiciaries.

And I hope that in states (laughs) where there are partisan elections — there are so many ways to appoint judges — I can’t imagine a worse way. I could not ask someone for a political contribution. I would feel so tainted by doing that. So all the talk about state constitutionalism, a lot really does depend on the method of selection.

Bulman-Pozen: Thanks. Maybe could we pan out a second to think about this project of state constitutional interpretation within our federal scheme? We’ve heard about pizza as the sort of heart of federalism —

Bolick: (Laughs.)

Bulman-Pozen: — so we have state diversity in some senses. But to the extent we’re thinking about states independently rather than lockstepping interpreting their constitutions, you’ve also all mentioned looking to other state interpretations potentially as a guide, I assume not lockstepping there either. How do we think about both the vertical and the horizontal dimensions of federalism? Chief Justice Rush, maybe you could start. I know you’ve written in some articles about the role of states as a counterweight to federal authority, and also the ways in which states might engage with one another. How should we be thinking about that when we’re thinking about state constitutional interpretation?

Rush: There’s a lot. The couple things that are really kind of standing out, that I’m seeing a trend that I’m worried about with regard to federal-state, I’m seeing states adopting the case and controversy requirement of Article III, which is a limiting principle, as opposed to looking at their broad remedies that they have. That’s very concerning for me because our freedom documents have rights. It’s not a penumbra in the Constitution, “life, liberty and the pursuit of happiness” — it’s an article. So when you’re looking at what is life, liberty, and the pursuit of happiness, and if you’ve got privacy in there, then you’re going to be looking at that as well, saying, well, this isn’t really — this is like a penumbra. No, it’s not. It’s an article. These raving Jeffersonians, they wanted this kind of democracy in Indiana. They wanted independence from the federal government. So they wrote these rights and they put them in an article. And particularly post-Dobbs, we’ve got to define what does that mean? What is this, the pursuit of happiness — life, liberty, and the pursuit of happiness? And we tackled that.

In looking at the idea of abortion in Indiana, what is life, liberty? Well, it means life. It means a woman’s life. Does it also mean serious health and her health? So we’re looking at that and we’re putting some meat on those bones. So that is one way of looking at it.

I’ve got maybe a little more faith in some of the states because I spent a lot of time looking at how states are interpreting their constitutional documents and saying, this is reason, this is a very principled way of finding this particular right.

We had a case that came before us, and it was whether somebody who’s an undocumented immigrant has a right to get tort damages for decreased earning capacity. Where do you go? Well, we went to our open courts clause. And it doesn’t say that these rights are only for people that are citizens; it’s broader. So we interpreted that that way, and I looked at other states to do it.

When I talked about the Polly Strong case, the young woman of color that said, listen, this says this, Illinois had similar language at the same time, but they didn’t come out that way. They came out a different way for a different type of reasoning. Looking at other states, we’re all wrestling with these things right now. And I think that sort of horizontal look at what they’re doing and how they’re doing it is hugely — we’ll have a lot of litigants that come, here’s the majority position, here’s the minority; they’ve got a similar clause, and the majority of them think that the attenuation should be this way and that. I think it’s important.

And then, you know, you’ve got the right to a speedy trial under the federal Constitution. We all have something like that in our constitutions to talk about “speedy.” And federally, the person has to keep asserting their rights — I need a speedy trial, I need a speedy trial, I need a speedy trial. Is it required in the states? No, it’s not required in the states. So I looked at other states when I was writing that opinion to see that they didn’t add that particular requirement on, and then we will do it.

And then the other dance is civil forfeiture — it’s a big issue right now. We had a case called Timbs. They did not file a state constitutional claim. But at that point, our friend Justice [Geoffrey] Slaughter wrote the opinion, saying, “Listen, the Supreme Court has not incorporated the Eighth Amendment of excessive fees and fines.” So we sent it up. We said, “Listen, you haven’t incorporated that.” Our court sends it up. They send it back and say, What is proportional? If your child borrows your car and is found with some marijuana, can they take your car under civil forfeiture? And what are your rights?

So we developed a test. We came up with a proportionality test. It went through the court system three times up to the Supreme Court. It was a white Land Rover. And I always said it was like Moby Dick — it was the state chasing, Ahab chasing — three times, chasing to get this car. (Laughter.) The guy got his car back and is driving his car today.

But that’s that dance we do because there’s so many pockets now. Like, cellphone location data before the Carpenter case came out — do you need a search warrant to send it off to Sprint or AT&T to get where — people know where you are all the time, by the way. We spend a lot of time looking at cellphone location data. And what do you need? So we had to guess. We had to punt.

And so the case I had was Zanders that went up at the same time as the Carpenter case, and then they sent it back, but they at least sent some parameters. But there are a lot of cases or a lot of old doctrines that don’t fit right now and are waiting. SCOTUS seems to take fewer and fewer cases every year. So the idea of looking at what other states are doing, even when these other states are interpreting federal provisions, it’s a lot.

And then there’s some great cases. Ruth Bader — Justice Ginsburg had some: Let’s send it to the states and let them figure it out, and let it percolate back on up to us. So I think it’s a really interesting dance. And I think it makes for stronger both federal and state courts that we’re doing that.

But I do worry, with the reduction in cases coming out of the U.S. Supreme Court right now with regard to these vital protections on defining, if people don’t bring that state constitutional claim. And I appreciated the attorney that said, “Listen, at the end of the day, we’re exhausted. We can’t — we don’t have three days to come up with a motion to suppress to say why this should or should not be.”

And the other interesting thing is, let’s talk [Rush turns to audience member] can I get your cellphone and put your thumb on it so I can see everything that’s on it? He’s going to give it to me. (Laughter.) So is that a violation of your Fifth Amendment right? We had one state come out one way. We had another state come out the other way. It still hasn’t been determined. Indiana was one, we came out, and we said it was a violation of the Fifth Amendment. Massachusetts came out the other way and said it was not a violation of the Fifth Amendment. We’re still waiting on SCOTUS, and we’ve got some good scholarly articles. We’ve teed the issue up for them, and they can see which way it’s going to go.

And thank you for offering me your cellphone. (Laughter.)

Bolick: Three quick points on that topic. By the way, your articles and the materials are fantastic. And I loved reading that story because, at the end of the day, how we interpret our state constitutions affect the real lives of real people. It’s always great to see stories like that.

One thing is, state constitutions often not only have additional provisions that don’t exist in the U.S. Constitution, but sometimes have things that do exist in the U.S. Constitution that we elected not to replicate. Case-or-controversy provision is absent in many state constitutions, and that makes a big difference, especially with regard to standing and access to the courts.

Second, if a provision — especially as a late-adopted constitution — if a provision mirrors the federal Constitution, I think that it’s appropriate to look at how those provisions were interpreted at the time that Arizona adopted those provisions, but not to follow the evolution of Supreme Court jurisprudence.

With regard to provisions in other states — as I mentioned, Arizona is very sparse in its legislative history, but we borrowed constitutional provisions from other states. And when we did that, we often looked to the jurisprudence from those states at the time our constitution was adopted. My favorite is the gift clause, which prohibits gifts of public funds by subsidy or otherwise to private entities — corporations and so forth — and that came from Montana. And at the time that was adopted, the Montana Supreme Court said that the purpose of that clause was to prevent — and I’m going to be off a little bit on the quotation here — “the orgies of dissipation of public funds for private purposes.” (Laughter.) Judges almost never get to use the word “orgy” (laughter), but every time we interpret the gift clause, we get to do it. So (laughter) we found that purpose to be very, very persuasive in robustly applying our gift clause.

Bulman-Pozen: We have a lot of questions from the audience, so I’m going to cut myself off so we can have you all have a chance to address these, if that’s OK. The first is: Does the relative ease of amending state constitutions figure into your constitutional decision-making? Should it encourage boldness among state judges because voters can more easily correct courts that get it wrong?

Rush: Our constitution is not that easy. We’ve got the fourth-fewest words in ours. It’s 11,000, as opposed to Alabama, which I think has 488,000 in it. So it’s not easy. Ohio’s pretty good at getting it done. They’ve had some big ballot initiatives, and Chief Justice [Maureen] O’Connor’s here, and she’s worked on a lot of those.

I think it does have an impact. And I’m just not a good one to say because it’s hard — we’ve got an initiative to hold somebody without bail. That’s something that’s got to go through the legislature twice. We don’t have a citizen’s ability to get on the ballot in Indiana.

Do you have it in Arizona?

Bolick: Yes. And —

Rush: Do you have the ability of citizens like they have in Ohio, that they can get —

Earls: No. No.

Rush: Yeah. We don’t have it.

Bolick: Both Jeff Sutton and Justice Brennan make this very argument —

Rush: Mmm hmm. They do.

Bolick: — that state judges — error correction is easier in the states. Well, it couldn’t be harder in the — (laughs) under the federal Constitution. And as a result, I can’t ever remember saying, “Oh, if we screw up . . . ,” you know? But nonetheless, it is a factor that I do think leads — should lead — to judges not feeling unduly restricted with regard to the possible consequences of their decision. It is very easy.

I am the author of a number of provisions of the constitution that I get to interpret. There probably aren’t too many people who can say that. Not by judicial fiat, by the way, but by actually doing ballot measures in my previous life. And so I can attest that that can happen very easily.

Bulman-Pozen: OK. Another question is: How can interpretation rooted in the original intent of the founders or the delegates be considered principled when it overlooks the perspectives and values of historically marginalized groups such as Black Americans and Native Americans who played an integral role in shaping our nation and its legal framework? For any who would like to discuss original intent’s legitimacy in light of those concerns, or maybe more broadly, how that might influence the appropriate methods of state constitutional interpretation or their limits?

Earls: So, our state constitution was reenacted in 1971, but there are still ways in which attitudes and norms and expectations at that time, I would think, are no longer operative (i.e., we do still have a literacy clause in our state constitution). And I would say I’m not an originalist, so I’m not sure; I’m probably not the best person to test the answer to that question.

I think of interpretation as a bundle of tools. And, obviously, you look to the text itself, the plain meaning — what do the words say and what do they mean? I think the intent at the time that it was enacted is one tool. It can be helpful, but it may not be relevant or it may not be helpful. I think in 1971, there are some records about why some things were changed and other things weren’t changed. So if it wasn’t changed from a prior constitution, are you supposed to go all the way back to when that language was first adopted and that’s the intent that matters, or is it the intent in 1971?

And it’s interesting, this question also comes up in cases challenging whether an initial provision was intentionally racially discriminatory. There, the courts have said — and this is not the North Carolina Supreme Court, but other courts — that if it was reenacted, then what matters is the intent when it was reenacted. So you sort of cleanse the discriminatory intent if it’s reenacted without a discriminatory intent, which seems to me to go completely contradictory to the notion that we are originalists and we go all the way back to what the language originally meant.

Where I’m coming from on this comes from a concept of democracy and the notion that as I understand it, the fundamental notion behind democracy is that we come together, we give up certain rights; it’s a social contract, we all have a say in our government. And people who were alive 200 years ago aren’t a part of that social contract anymore. (Laughs.) And so while what they said and why they said it and what they meant is one tool and one piece of useful information, it seems to me really important — and especially with so many of these questions that are dealing with things that didn’t exist 200 years ago — that, ultimately, we’re justices because we are sworn to do justice, and that part of that enterprise is calling upon our wisdom and the wisdom wherever we can find it. (Applause.)

Bolick: So first, to quarrel just a bit with terminology, we actually recently had a case involving what was our goal in statutory intent. And in about half of our cases, we said the goal of statutory intent is to effectuate the words of the statute, the original plain meaning in the statute. And the other half said that the goal was to effectuate the framers’ intent and the language of the statute was — and I’ll never forget this language — “the best evidence of that.” And we would use them, one in one case and the other in the very next case, and it occurred to me that we ought to choose one. And so four of us, in a recent concurring opinion, chose the plain meaning. So intent and textual analysis are actually different things unless the legislature tells us what its purpose is, in which case, then I think we need to interpret it that way.

I think there are two reasons why we should follow that approach. First of all, of all of the approaches, it is the least bad, because otherwise, you are giving judges subjective discretion to simply impose their own policy views. And I often tell my friends and family I never have a better day than when I decide a case that goes against my own policy predilections — which is not uncommon. And I think the reason that I do that is because I am a pretty serious textualist.

The other is our constitutional oath. Our oath is to the law. And so I think although minds can differ in good faith, and they do differ in good faith, that is what our role is as judges. And I think we do damage, ultimately, to public support for the judicial system when we vary from that.

And then, finally, state constitutions are easily amended to reflect the broadened sovereignty, public sovereignty, that we have. The Arizona Constitution was initially vetoed by President Taft because it contained a judicial recall provision that he found offensive. We took it out, and then he signed it, and the very first thing we did as soon as it was adopted was put that back in there. (Laughter.) So Arizonans are quite capable of changing our organic law, and I think judges should not be the ones to do that.

Rush: If I could just quickly add, I think I love what you said the “least bad” way. (Laughter.) I spend a lot of time looking at different schools of legal thought — natural law, school of legal positivism, realism — and natural law, is that something everybody agrees on? When things come to courts, where there are good people on both sides disagreeing, it’s hard to say, “Boom, we’re going to decide it by judicial fiat.” There are edges to this and there’s bringing it around, but when the day is done, you’ve got to have a body of jurisprudence that is predictable, reliable, and that’s not forever. It’s the same thing at the U.S. Supreme Court. When they decide this is the law — and that’s why you don’t want to lockstep — when this is the law, you’re stuck with this from here on out, as opposed to the gridlock that goes on in some of the other political processes.

Bulman-Pozen: I hope I could ask all of you, in your closing remarks, to address, since we have multiple rooms full of people who are interested in state constitutions, state constitutional development, state constitutional interpretation — what more would you like to see out there that would enable these processes of state constitutional interpretation and development from students, from practitioners, from judges? What should we all be thinking about as we go forward from today?

Rush: I think if you look at the bundle of individual rights and civil liberties, the wealth of rights that are untapped in our state constitutions is huge. I invited Jeff Sutton to come out and speak to all the chief justices, and I made sure the conference bought them all a book. (Laughter.) So we are training up our chief justices.

The other thing I tell them is, well, how can you get people interested? Well, if your chief justice writes a couple law review articles in the state on it, it tends to get people’s attention, right? So we’ve got to keep — and I know we all have busy dockets and that — but start putting out some scholarly work, and then all of a sudden it gets cited back to you.

So I just can’t pound this drum strong enough that people’s rights matter, and you’ve got so many protections. And I’m sure a lot of you will say you don’t give enough. I get that. But there are plenty of them already in there that are just ripe. They’re just fertile to protect. People like their individual rights and liberties. They want to know that their privacy is going to be protected. They want to know that they’ve got these rights with regard to themselves.

I think it’s never been more important. They’ve been talking about this for decades. There was a lull. I worry that there’s going to be another lull when I talk about standing and these trends —I’m seeing some states pull back those state constitutions, let alone expand those rights that are protected.

Earls: So I think I have the same plea, which is read the state constitutional provisions carefully and think creatively when bringing claims. But I want to circle back to what I said initially about how, at least in our state, the federal constitutional guarantees have not totally proven to be a floor. There are several examples of when our state court has interpreted our state equal protection clause to provide more protection, both of these in the voting rights — or two prominent ones in the voting rights arena. So in the past, they interpreted the equal protection clause of our state constitution to provide more protection than the federal clause.

But part of the challenge in bringing these claims and part of what creates the risk — because you would think, well, when I was sworn in, I said I would uphold the Constitution of the United States, so how is it that there could be an opinion that says this might violate the federal Constitution, but it’s fine, go ahead, it’s fine under the state constitution? Well, the reason is because federal claims weren’t brought, and the reason they weren’t brought in the civil case is because then the case would be removed to federal court and we wouldn’t see it at all.

I recognize the challenge, and I don’t have an easy answer around that. But I will say, in North Carolina, there is something of what may be called an analog to Section 1983. You don’t get attorney’s fees, but the court decided a case called Corum v. UNC, I think in the late 1980s, where the court said if you have no other adequate alternative state remedy — and that’s a big if, and a lot of claims brought under the state constitutional guarantees never get to reach the state constitutional issue because we say, well, there was an alternative remedy, so you can’t sue the state or the government directly under the state constitution. But Corum said if you have no other adequate alternative remedy, you can sue the state to enforce the state constitution.

One of the useful things about comparing what happens in other states is that, in briefing, we always get these predictions of how the sky is going to fall — and you know, there will be a torrent of lawsuits if we rule one way or the world will end if we rule the other way — and so we can look to another state and say, well, they’re doing it that way and the world hasn’t ended for them (laughs), so maybe that’s an exaggeration.

You might think that Corum would have unleashed many more state constitutional claims brought. As it turns out, we have ruled and three additional times found a Corum claim and given a plaintiff relief or the avenue to seek relief under a state constitutional provision. So that’s about one a decade. My point is, litigants aren’t using Corum, aren’t using the state constitutional remedies that they have; and so what we need as jurists is for people to think creatively about what those guarantees are and bring the cases.

Bolick: Well, for law students, I often say if you want your law review article to be cited, write about a specific provision either common to a number of state constitutions or to your own. The reason is it will probably be the primary authority (laughter) for that provision. And so, by all means, think about that virgin territory that exists.

For groups like the Brennan Center, as Justice Brennan himself pointed out, this is not a right-left issue. There is strong interest in state constitutionalism on all sides of the spectrum, and I’d like to see more conferences in individual states focusing on their state constitutions for CLE [continuing legal education] credit and so forth. I think that really jumpstarts the conversation. I’d love to see the American Constitution Society, which should be Constitutions Society (laughter) and the Federalist Society doing joint events.

As a judge, early on, it frustrated the heck out of me that people weren’t making these arguments. So I would drop footnotes in my opinions saying, “Gee, I wonder what the outcome would have been if we had had this state provision.” It succeeded almost too well. We have a really sophisticated criminal defense bar that has really taken this to heart, which I really appreciate, and I feel guilty every single time that I rule against them now (laughter) when they’ve raised these state issues. But I’m so, so glad that they’re doing it.

And then, finally, if I ever am feeling really, really ornery, we don’t have any authority over our law school curricula, but we do over the bar exam. If we ever plugged a state constitutional question onto the bar exam, 90 percent of the applicants would flunk it. So I want to reserve that only if other —

Earls: We do.

Bolick: — if other things — oh, that’s awesome. That’s awesome to hear.

(Off-mic conversation.)

Bolick: Wow. We are an outlier and we are clearly lagging. So —

Rush: You have homework.

Bolick: (Laughs.) Thank you.

Bulman-Pozen: Please join me in thanking our panel. (Applause.)

(End.)