State Constitutional Law After Dobbs and Bruen
Supreme Court rulings can expand or contract the space for state constitutional law.
There are a number of ways in which the U.S. Constitution — and its interpretation by the Supreme Court — affects state constitutions and their interpretation by state courts. Probably the most important area right now is the interpretation of state constitutional rights. This explainer describes the relationship between federal and state constitutional law, discusses why decisions limiting federal rights can be consistent with expanded state constitutional rights, and details varying state court approaches to interpreting their constitutions.
The space for state courts to independently apply their state constitutions is accordion-like, meaning it can expand or contract based on U.S. Supreme Court decisions. For example, decisions such as Rucho v. Common Cause, which held that federal constitutional challenges to partisan gerrymandering were nonjusticiable, and Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and held that there was no federal constitutional right to an abortion, represent a hands-off approach to federal constitutional rights interpretation, leaving these matters to the states and thus expanding state constitutional space. By contrast, the Supreme Court’s Second Amendment ruling in New York State Rifle & Pistol Association v. Bruen, as well as a number of recent federal constitutional religion decisions, represent a hands-on approach, taking these matters away from the states and thus narrowing state constitutional space.
The Supreme Court can also leave state constitutional space when it rules against or minimizes federal constitutional rights in a single case rather than a whole category of cases. For example, a fact-specific search-and-seizure claim might fail in the Supreme Court under the applicable test but leave room for state courts to reach a more protective outcome under different facts as a matter of both federal and state constitutional law.
Even where state constitutional space exists, however, a Supreme Court ruling limiting federal rights can still exert a “gravitational force” on state constitutional second looks at the matter. Therefore, the first step in arguing for a more protective state constitutional decision is to dispel this gravitational force.
Importantly, the Supreme Court has often expressed support, or at least tolerance (as it must), for state courts interpreting their constitutions to be more protective than its interpretations of the federal Constitution. For example, Justice Antonin Scalia, in a death penalty sentencing decision, noted, “The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions.” Even though such statements are truisms, it cannot hurt to quote them to state courts deciding whether to interpret their constitutions to be more protective. Equally important is the fact that a state constitutional decision that is based on an “adequate and independent state-law ground” is insulated from Supreme Court review.
Careful review of a Supreme Court majority opinion limiting or denying a federal right may reveal evidence that the Court was underenforcing the right because of federalism concerns about mandating a single national rule for the 50 states. Such reasoning can support arguments for stronger rights enforcement at the state level.
For example, in the 1973 case of San Antonio Independent School District v. Rodriguez, the Supreme Court rejected a claim of unequal public school funding, stating:
Every claim that arises under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State’s laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny.
Many state courts are fully aware of this possible “federalism discount.” For example, the New Jersey Supreme Court, also considering unequal public school funding within weeks of Rodriguez, observed, “There emerges from the [U.S. Supreme Court] majority opinion an evident reluctance to say that the Federal Constitution supplies single solutions by which all the States are bound.”
Another reason the Supreme Court may decline to impose a national constitutional rule is because of strategic concerns about how such a rule would operate in widely divergent states. As Texas Law professor Lawrence Sager has noted:
State judges confront institutional environments and histories that vary dramatically from state to state, and that differ, in any one state, from the homogenized, abstracted national vision from which the Supreme Court is forced to operate. It is natural and appropriate that in fashioning constitutional rules the state judges’ instrumental impulses and judgements differ.
A good example of differing strategic concerns can be seen by comparing the approaches of the U.S. Supreme Court and the New Jersey Supreme Court to the warrantless search and seizure of household garbage left at the curb. In California v. Greenwood, the U.S. Supreme Court rejected a claim that such searches violated the Fourth Amendment. The Court concluded that while “individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution, . . . society as a whole possesses no such understanding.”
Several years later, the New Jersey Supreme Court reached a more protective result under its state constitution’s Fourth Amendment analogue. The court explained that while the U.S. Supreme Court has to “take note of the disparity in warrant application procedures among the several states, and must consider whether a warrant requirement in that situation might overload the procedure in any one state,” in New Jersey, “we are fortunate to have . . . a procedure that allows for the speedy and reliable issuance of search warrants based on probable cause.” For this reason, the state high court concluded, “A warrant requirement is not so great a burden in New Jersey as it might be in other States.”
Finally, the fact that a U.S. Supreme Court decision was not unanimous can erode its persuasive force, and the arguments of the dissenters can appeal to state judges. For example, in establishing a state constitutional violation for partisan gerrymandering, the New Mexico Supreme Court recently adopted the test articulated by Justice Elena Kagan in her dissent in Rucho.
Some state courts have established a set of criteria or factors they say they will apply when deciding whether to interpret their state constitutions to be more protective than the federal rights established by the U.S. Supreme Court. These criteria include, not surprisingly, differing text, constitutional history indicating higher protection, preexisting state law, and cases on the issue in other states. I have been critical of this approach because, among other things, it seems to give the U.S. Supreme Court’s approach a presumption of correctness that is misplaced given the likelihood of the Court’s federalism deference, strategic concerns, and other matters mentioned above. But when bringing a case in such a state, it is wise to follow the criteria laid out by the court.
Other state courts may have issued earlier decisions that interpret a state constitutional provision in lockstep with how the U.S. Supreme Court has interpreted the federal issue. While a lockstepping decision may be limited to a specific set of facts, state courts also often purport to adopt the federal constitutional doctrine in future cases. I have argued such a statement may not be considered a binding precedent because, among other things, a court cannot decide future controversies with unknown facts.
Turning to the unique arguments available under state constitutions for a more rights-protective constitutional ruling, the first step is to consider the state constitutional text. Even if it is identical to the federal text, a court is free to interpret a state provision to be more protective. And slight variations in text can be very persuasive in making the case that a state constitutional provision should be interpreted differently than its federal counterpart. For example, several states have Eighth Amendment analogues that bar cruel or unusual punishment rather than cruel and unusual punishment. Moreover, some familiar constitutional rights are phrased very differently in state constitutions. For example, many First Amendment analogues have distinct language regarding free speech and religious guarantees.
There are also many rights provisions in state constitutions that have no analogue in the federal Constitution. For example, some states protect incarcerated individuals from being treated with “undue rigor,” and numerous states have adopted state-level Equal Rights Amendments. Modern environmental provisions can be interpreted to vindicate public rights, while right-to-remedy and civil jury trial clauses have been deployed against special-interest tort reform laws.
State constitutions also contain a wide variety of policy provisions on topics that could be covered by ordinary statutory law. These provisions can sometimes be used to establish rights. For example, many state constitutions include provisions on workers’ compensation, implementing a “Grand Bargain” that eliminated tort remedies in exchange for administrative remedies. I have argued that these provisions can support workers’ claims that an implementing statute unduly restricts eligibility requirements or benefit levels.
In state constitutional law, it is also possible, where more than one rights provision is potentially applicable to a fact situation, to argue that not only do they apply individually, but they also enhance each other. For example, where unequal allocations of education resources are challenged under state equality provisions, the existence of a right to education has been used by some courts to support a heightened level of judicial scrutiny. Likewise, in Montana, the state supreme court has justified enhanced search-and-seizure protections based in part on the state constitution’s right to privacy.
Another difference between state constitutions and their federal counterpart is that state constitutions are, by design, much more easily amended. Consequently, some textual provisions concerning rights may be layered, reflecting changes over the years. This calls for what has been referred to as interconstitutionalism, requiring each of the changes to be considered.
Finally, state constitutional rights provisions can be given context and even evidence of intent by state constitutional history: constitutional convention records, constitutional commission records and reports, the history of legislatively proposed amendments, and even newspaper articles and editorials. Since in all but one state, the voters must ratify state constitutional amendments and revisions, the courts typically search for the voters’ intent or “the voice of the people.” State constitutional history materials are often more recent, complete, and available than their federal counterpart but are subject to some of the same problems. Layered provisions will have constitutional history for the original version as well for each change. State courts interpreting state constitutions apply various “canons” of interpretation that are identical or similar to canons of statutory interpretation.
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State constitutional law litigation may initially seem unfamiliar, but it really is just lawyers’ work in texts, intent, case law, and interpretive doctrines. There are many more law review and treatise resources than were available in earlier generations. For the foreseeable future, state constitutional law will have to provide a “second best” alternative to the Supreme Court’s national rights protection.
Robert F. Williams is a distinguished professor of law emeritus at Rutgers Law School and the director of the Center for State Constitutional Studies.
Ohio is the latest state to conclude that state courts need not defer to state agency interpretations of state law.