One Simple Way to Support State Constitutionalism

We’re in a pivotal moment for state constitutional law. In the past few years, particularly after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, there’s been unprecedented attention on state courts and constitutions as sources of rights. At the same time, in most states and on most issues, state courts continue to interpret their constitutions in lockstep with federal law, with no consideration for state-specific conditions, history, or constitutional differences.

For those of us who want to see states develop their own constitutional law, which reflects the needs and interests of their own citizens, the million-dollar question is: What are the practical hurdles to building state constitutional law? Part of the million-dollar answer: a lack of dollars.

Federal law incentivizes litigants to explore and refine rights under the U.S. Constitution. For example, when plaintiffs bring federal constitutional lawsuits, the Civil Rights Attorney’s Fees Award Act of 1976 (known to its friends as Section 1988) allows winning plaintiffs to recover attorneys’ fees. This is a big deal in making civil rights litigation financially feasible, especially when plaintiffs are looking to stop bad behavior rather than seeking damages. By contrast, only a few states have similar fee-shifting laws for state constitutional litigation.

Back in February, State Court Report and the Brennan Center partnered with the NYU Law Review to hold a symposium on The Promise and Limits of State Constitutions. Over two days and seven panels, more than two dozen judges, scholars, and practitioners interrogated the question of how to build state constitutional law and many others. (For those who weren’t able to make it, I’m excited to share that the videos for the full event are now available for your viewing pleasure. And if you’re like me and almost always prefer reading the transcript, we’ve got you covered, too.) Money kept coming up.

One of our panelists, the ACLU’s Julie Murray, recounted participating in a year-long case in Iowa requiring hundreds of attorney hours and recovering a grand total of $300 in costs.

This lack of fee shifting is a big impediment to developing a robust state civil rights bar: there aren’t many organizations or firms with the capacity to bring major constitutional challenges without the possibility of recovering fees, and civil rights plaintiffs aren’t typically well heeled. With this set of incentives, state claims often receive short shrift. Similarly, damages caps can make it harder for plaintiffs to seek full recompense for violations of state constitutional rights, discouraging lawsuits that could establish or expand rights.

Funding also impacts lawyers’ capacity to effectively represent state court litigants — including developing new state constitutional arguments. Public defense and legal services in the states are woefully under-resourced, and in areas like landlord-tenant and family law, unrepresented litigants are the overwhelming norm. State courts themselves also face stark underfunding and overwhelming dockets. As Yale Law School professor Judith Resnik noted, state courts are the “emergency rooms” of our system, where 95 percent of all cases are filed. As a society, we’ve made a choice not to equip them to vindicate rights.

Money isn’t everything, of course. There are many other hurdles to building state constitutionalism, not least that most law schools don’t have a state con law course. But if we want to see state constitutional development outside of a few big areas, a big piece of the story is resources and incentives.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.