Symposium Articles

In light of the Supreme Court retrenching on certain rights in recent years, more Americans are paying attention to state constitutions. This moment therefore offers an opportunity to explain why scholars, lawyers, and ordinary citizens should take state constitutions as seriously as they do the U.S. Constitution, and consider studying them an intellectually rewarding and important endeavor. In this essay, I attempt to do that. Earlier in our history, state constitutions helped define what it meant to be American. Through the process of drafting and interpreting constitutions, prior generations decided what popular sovereignty meant, who qualified as part of “the people,” and what “liberty” meant. The U.S. Constitution has proven resistant to change because of its difficult amendment process. But state constitutions are in the process of changing as we speak. Engaging with them gives us an opportunity to decide questions like what popular sovereignty and liberty mean in the twenty- first century. That is to say, studying state constitutions allows us to contribute to the ongoing discussion about what America means in the twenty-first century in a way no other area of law does. In this essay, I also argue that there are three practical benefits to approaching state constitutions from this perspective: (1) increasing respect for state constitutions; (2) ensuring constitutional stability and avoiding constitutional crisis; and (3) preserving American democracy.

Longstanding constitutional commitments appear to ensure rights to remedies for “every person.” Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff.

Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of “our common intellectual heritage,” why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication’s legitimacy.

Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is “Judicial Hellholes,” which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies.

To clarify the normative stakes of conflicts over “rights to remedies” in “open” courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on “class” (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of
doing so.

Recent scholarship persuasively argues that state constitutional law should be grounded in state-centered reasoning, not federal imitation. That approach, compelling at the 10,000-foot level, also requires development through examples closer to the ground. This symposium Article uses legislative vetoes—arrangements in which legislators can override executive action without passing new laws—to explore the practice and adjudication of state structural constitutionalism.

The first surprise about state legislative vetoes is that they exist at all. Legislative vetoes have been a dead letter at the federal level since the Supreme Court’s decision in INS v. Chadha forty years ago. State courts, it turns out, have also overwhelmingly rejected legislative vetoes. But the mechanisms live on in some states due to constitutional amendments, statutes that have not been litigated, and occasional evasion of court rulings. The resulting state legislative vetoes sometimes serve as powerful forces in state governance or entrenchment mechanisms for gerrymandered legislatures. They are also a variegated rather than monolithic category, involving different powers and actors across the country and over time. In all of these ways, legislative vetoes help us see the practice of state constitutional structure as negotiated, evolving, and complex.

Turning from practice to doctrine, the state case law shows the operation—and value— of a state-centered approach, even when state and federal constitutional provisions are superficially similar. State courts could simply lockstep with Chadha on the ground that state and federal constitutions alike make law through bicameralism and presentment and distribute power among three branches. But many state courts have made greater use of context and realism, extending their reasoning beyond formalist (or functionalist) horizontal classifications of power as legislative, executive, or judicial.

Building on that foundation, this Article argues that Chadha’s holding will often be correct at the state level, but for different reasons. Horizontal classifications alone do not capture when and why legislative vetoes are problematic. Review rooted in state constitutions’ commitment to democracy can complete the explanation of why state courts have rejected legislative vetoes, especially vetoes by mere legislative committees. Policymakers, advocates, and proponents of constitutional amendments can all participate in steering legislative oversight away from anti-democratic designs.

Of course, none of this—neither the nuances of practice nor the doctrinal distinctiveness—would be apparent if we think of legislative vetoes only through existing federal frames. Ultimately, the underappreciated story of state legislative vetoes underscores the importance of studying the states on their own terms.

In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.

Less than two years after the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the landmark decision recognizing a right to choose abortion, a campaign to reverse Dobbs and reestablish a new right to reproductive autonomy has taken shape. This emerging strategy deploys what this Article calls state constitutional incrementalism: an effort to chip away at a federal precedent by scoring wins in state supreme courts.

This Article explores the promises and perils of state constitutional incrementalism, using reproductive rights, both past and present, as a critical case study. It traces the history of antiabortion incrementalism, with special attention to state courts, and then explores how contemporary abortion-rights advocates have drawn on the lessons of the past (among others) to reverse engineer this campaign in the present day. Two incrementalist strategies have emerged in state court as a result: efforts to secure state constitutional protections for abortion and to highlight the inadequacy of exceptions to state abortion bans. These efforts are incremental in more than one sense. None of them directly challenge federal precedent. In the short term, however, both promise to change the reality on the ground, state by state. And both can set the stage for a later challenge to a federal precedent.

A complicated picture of the costs and benefits of state constitutional incrementalism emerges from this study. State constitutional incrementalism can offer powerful evidence of the internal contradictions and unworkability of state precedents that echo a federal decision or state laws that a federal precedent permits. State constitutional incrementalism also facilitates experimentation with different jurisprudential foundations for constitutional rights. These experiments can afford a rare glimpse of the real-world efficacy of different approaches to liberty and equality. And a critical mass of state constitutional decisions can provide evidence of an “evolving,” popular understanding of the constitutional protections that may also matter in the federal context.

At the same time, however, the success of state reproductive-rights incrementalism, much like the fight to reverse Roe, will depend a great deal on the responsiveness of state courts to popular mobilizations for constitutional change. History shows that the incrementalist campaign to undo Roe owed as much to gerrymandering, efforts to deregulate campaign spending, and strategies to limit access to the vote than it did to lower court victories or incrementalist litigation. A new effort to restore reproductive rights will have to attend as closely to the same kinds of structural change.

It has been five years since the U.S. Supreme Court’s ruling in Rucho v. Common Cause closed the door on federal claims challenging partisan gerrymandering, declaring them nonjusticiable political questions. Scholarly literature, since then, has focused primarily on where the Court went wrong in abdicating its responsibility and, to a lesser extent, how the Court got Rucho right. However, an under-addressed feature of Rucho is what Justice Elena Kagan explicitly and implicitly stated in her dissent; that is, the role of judicial federalism before and after Rucho and the influence of state courts in developing partisan gerrymandering doctrine as a matter of state constitutional law.

Justice Kagan’s dissent explicitly reminded the majority that if the state courts were capable of crafting appropriate standards to address partisan gerrymandering, so too was the Court. The problem, of course, was that the number of state court rulings addressing partisan gerrymandering at the time were in short supply. Implicitly, Justice Kagan then suggested that the Court could and should have consulted, borrowed, and adopted the state versions of neutral and objective standards as a source to guide the Court towards crafting a workable federal version. She, however, failed to identify or reference prior instances when the Court looked to the state courts to educate federal constitutional law. This Essay draws attention to how Justice Kagan’s dissent should be understood as foundational support for both the process of percolation and practice of federalization.

The percolation of state constitutional doctrines on partisan gerrymandering offers the Court a rich source of doctrine that will clarify the neutral and objective principles necessary to effectively adjudicate such sensitive political questions in the future. As such, the Court will be positioned to federalize those state doctrines, if it chooses to do so, in order to inform, guide, and support the creation of a federal partisan gerrymandering jurisprudence.

Over the last fifty years, the Republican Party has gradually claimed a majority of state legislative seats and chambers. What explains this? Scholars point to Republican grassroots mobilization of conservative voters in the late-twentieth century. This Essay adds another explanation: Republicans win disproportionate state legislative seat shares by winning rural districts by narrow, efficient margins and by changing state legislative redistricting practices, sometimes by state constitutional amendment. This Essay recounts this history, noting how in the mid-twentieth century, rural-dominated state legislatures failed to mandate fair, regular reapportionment, prompting the Supreme Court in 1964 to force the states to reapportion their legislatures and entrench fair redistricting and voting rights provisions in their state constitutions. Reapportionment added conservative, suburban districts, expanding Republicans’ state legislative seat share in the 1970s, 1980s, and 1990s. With subsequent urban-rural polarization and realignment, Republicans began winning rural districts by narrow, efficient margins, while Democrats won urban districts by wide, inefficient margins, letting Republicans win a greater statewide legislative seat share than popular vote share. Insulated from the popular vote, especially in competitive states, Republican state legislators entrenched their seats by changing elections and redistricting practices, sometimes through state constitutional reform that weakened earlier voting rights and redistricting provisions.

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.