Lockstep or Step Alone: Considering Interpretations of the Federal Constitution When Interpreting State Constitutions

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Emily Manning:  Hello everyone. And welcome to this Federalist Society virtual event. My name is Emily Manning, and I'm an Associate Director of Practice Groups with The Federalist Society. Today, we're excited to host a discussion titled "Lockstep or Step Alone: Considering Interpretations of the Federal Constitution When Interpreting State Constitutions." We're joined today by Judge David R. Stras, Chief Judge Jeffrey S. Sutton, Associate Justice Sarah Hawkins Warren, Justice Clint Bolick, and our moderator today is Justice Sarah K. Campbell of the Tennessee Supreme Court.

 

If you'd like to learn more about today's speakers, their full bios can be viewed on our website, fedsoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions.  If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. And, with that, thank you for joining us today.  And Justice Campbell, the floor is yours.

 

Hon. Sarah Keeton Campbell:  Thank you, Emily. And thank you for joining us today. We have an all-star panel here to talk about state constitutional interpretation and, specifically, whether state constitutions should be interpreted in lockstep with federal constitutions. So we have a lot to talk about. We'll dive in in just a moment. I want to give brief introductions of our panelists. We will do moderated questions for about 45 minutes and leave the last 15 minutes for audience questions. So please do enter those into the chat box and be thinking of good questions for our exceptional panelists today.

 

      So, in alphabetical order, we have with us Justice Bolick from the Arizona Supreme Court. He has served on that court since January of 2016. Before his judicial career, he cofounded the Institute for Justice, and later served as president of the Alliance for School Choice, and Vice-President for Litigation at the Goldwater Institute. He teaches constitutional law at Arizona State University School of Law, and also serves as a research fellow at the Hoover Institution.

 

      Next, we have Judge David Stras. He was confirmed to the United States Court of Appeals for the Eighth Circuit on January 31, 2018. Before that, and relevant to today's discussion, he was a justice on the Minnesota Supreme Court from 2010 to 2018. Before that, he was a professor at the University of Minnesota Law School, and also spent some time in private practice. He received his undergraduate degree and law degree from the University of Kansas. He clerked for Judge Melvin Brunetti on the Ninth Circuit, Judge Michael Luttig on the Fourth Circuit, and Justice Thomas on the U.S. Supreme Court. 

 

      Chief Judge Jeffrey Sutton has served on the United States Court of Appeals for Sixth Circuit since April 2003. He became the chief judge in May of 2021. Before becoming a judge, he spent a number of years in private practice and also served as the solicitor general of Ohio. He graduated from the Ohio State University College of Law, clerked for Judge Thomas Mescall on the Second Circuit and Justices Powell and Scalia on the U.S. Supreme Court. In his spare time, he teaches at his law school alma mater and at Harvard Law School. And he has written a couple of books that are relevant to today's discussion: 51 Imperfect Solutions, and Who Decides? Both of which I highly recommend.

 

      And, finally, we have Justice Sarah Warren, who has been a justice on the Georgia Supreme Court since 2018. She previously served as solicitor general out of Georgia and was in private practice for a number of years at Kirkland and Ellis.  She earned her undergraduate and law degrees at Duke University and is wearing blue today in honor of their current 19^th place ranking in the national football rankings.  They're above my Tennessee Vols, which is surprising, but maybe not so surprising, given how the Vols have done the past few seasons. Justice Warren clerked for then-Chief Judge J.L. Edmondson on the Eleventh Circuit and Judge Richard Leon on the D.C. District Court.

 

So, I told you this was an all-star panel.  I was trying to think of a catchy way to describe them. We've got two current state supreme court justices, one former state supreme court justice. And I heard Chief Judge Sutton say that he always wanted to be a state supreme court justice. So we have a want-to-be state supreme court justice. So, welcome to our panelists. And welcome to our audience.

 

So we are here to talk about state constitutional interpretation. Before we get into the weeds, why should we care about state constitutional interpretation? We might have a lot of folks in our audience who practice primarily in federal court. So, in particular, why should they care about state constitutional interpretation? Justice Warren, why don't you start us off?

 

Hon. Sarah Hawkins Warren:  Oh, gosh. Thanks, Sarah. And thank you so much for having us here.  We should care for a lot of reasons. And I hope that the folks who have signed on today will eventually become evangelists for state courts because we should honor the separate constitutions that the people in our 50 states have passed. Those documents have separate meaning than the federal Constitution, and they are governing documents that are really important to the identities of each of our states.

 

I would say, kind of on a practical level, you might end up in state court. You might start in federal court and find yourself in a situation where a question is certified to a state court. And so, even beyond sort of the academic and loftier reasons why we should honor those separate state constitutions, we should also be realistic about the fact that a lot of litigants might end up in state court. And then, of course, I think from just a purely intellectual perspective, state courts are on the frontlines of some really novel interpretive issues that are quite interesting. And I think there's a lot of reason to care to about that, too.

 

Hon. David R. Stras:  Just to jump in, a couple more practical reasons. One is, to really understand the federal system, you have to understand the federal constitution, the United States Constitution. To understand how state governments operate, you really have to understand state constitutions. Litigants, in my experience, don't read them. They don't spend time with them. And, therefore, they don't understand how state courts and state governmental entities work. I had an experience very early on. And I'm speaking for sort of an embarrassing moment for me, but I was put on the canvassing board — which is an executive agency — as a state supreme court justice.

 

And I remember going in to the chief justice and saying, "Isn't that unconstitutional for a member of the judiciary to serve on the state canvassing board? That's an executive function." And she said, "I sure hope not. It's in the constitution." The point is that there are things in state constitutions, like allowing advisory opinions, like allowing judges to serve in an executive capacity, that aren't present in the federal constitution. So, to understand how state government works, you have to understand what state constitutions say.

 

And you also don't want to be that litigant who gets asked — and this happened to me my first couple of years on the court where we asked a question to a litigant — "What does the state constitution say about it?" And the litigant literally looked like a deer in the headlights and had no answer for us. It turned out that the state constitution would have allowed this litigant to win on behalf of his client. But, instead, the litigant was more focused on statutes than the constitution. So, just a couple of practical reasons why you might want to be concerned about what state constitutions say.

 

Hon. Clint Bolick:  Well, to pick up on that, state constitutions were intended, in our federalist design, to be the first line of defense for our individual liberties. And every single state constitution contains protections of individual rights and constraints on government power that are unknown to the federal constitution. And when a case is decided under a state constitution, so long as there is not a federal concern, a statute or a federal constitutional provision that would override the state constitutional decision, the decision of the state supreme court is final.

 

Just to give three very quick examples of how that system works: here in Arizona, the Heller decision was a 5-4 decision, greeted with tremendous interest after a century of the Second Amendment really having no meaning at all. Well, in Arizona, our declaration of rights explicitly protects the individual right to own firearms for defense of themselves and the state. So that issue was already resolved here in Arizona. And that meant the Heller decision really didn't matter in Arizona because that issue was already resolved.

 

Eminent domain: the U.S. Supreme Court finding that public use, under the Fifth Amendment, does not protect against private-to-private transfers of private property. Arizona, exactly the opposite: a complete prohibition on private-to-private transfers using the eminent domain power. And, finally, the recent 303 Creative decision involving a requirement that individual businesses provide customized services to same-sex couples: we decided that very same issue a few years ago, again rendering what the U.S. Supreme Court did as interesting but irrelevant, because we had already recognized those rights under the Arizona constitution.

 

Hon. Jeffery S. Sutton:  Yeah, I'll just add two basic points that I think are echoing, in one way or another, some things that have already been said, but I just don't want to miss the obvious. Sometimes, the U.S. Supreme Court puts up a big red stop sign and just says, "This is not a cognizable federal question." Think of Rucho and political gerrymandering cases. So, the reason you have to care about state constitutions and state courts is that's your only option. So, that's obviously happened with Dobbs and abortion. But it happened before that with Smith, very under-protective of free exercise rights.

 

Kelo, as Clint mentioned: it's a big red stop sign there. In criminal procedure, the Leon good-faith exception really creates problems for litigants when it comes to exclusionary rule cases. So, the first point is if there's a red stop sign, what else can you do but use the state constitution in state court? The second point, and I think David was alluding to this, I don't understand how you can figure out the fixed original public meaning of a federal guarantee. 

 

And I don't care whether it's in the bill of rights, or a structural guarantee. You have to go to the source code, and the source code is the original state constitution. It's written from 1776 to 1786. So there really is no way to practice originalism in federal court without knowing the state constitutions and that history. So you may not think you're a state constitutionalist, but I promise you are if you think you're an originalist, because otherwise you don't know how to practice originalism.

 

Hon. Sarah Keeton Campbell:  So, the question we're talking about today, whether state courts should interpret their state constitutions in lockstep with federal constitutions, comes up only when you have a state provision that has a federal counterpart. But there are, of course, a lot of state constitutional provisions that do not have any federal counterpart at all. And some of those are, I think, really interesting. Can you talk about some examples? And I'll just give one to get us started, from the Tennessee constitution.

 

      We had adopted, in our 1870 constitution, a provision requiring the legislature to establish safe and comfortable prisons. And that came directly from the experience of several constitutional convention delegates during the civil war, when they served as prisoners. So, "comfortable" was later taken out. But we still have a requirement that the legislature provide for safe prisons. So what are some others, both unique provisions and then others that appear in a lot of state constitutions but have no federal counterpart? And, Justice Bolick, why don't you get us started on that one?

 

Hon. Clint Bolick:  Well, having litigated a number of these — both having them litigated against my party and for my party — I love these provisions. Certainly, one of my favorites is the gift clause. And that is a provision found in a number of state constitutions that prohibit gifts, by subsidy or otherwise, to private individuals, corporations, or associations. And that has been used here in Arizona to restrict corporate giveaways in a number of contexts. Obviously, a provision that I wish existed in the U.S. Constitution but utterly does not.

 

Similarly, we have prohibitions — and a lot of states do — against private or local bills. And we have single subject requirements for our legislature. Again, recently, in our court, a number of things were enacted as part of the state budget that might not have been able to be enacted if they were single provisions. Some of them were very substantive and very controversial, and we struck those provisions down. This is a practice, at the federal level, referred to as logrolling.

 

And, again, I wish there was a similar provision in the U.S. Constitution. But there is not. I'll stop with those two, to hear from our colleagues. But those two alone -- oh, and I should mention, in Arizona, because this may be increasingly relevant, we actually do have a privacy provision in our constitution, as do a number of other states. It was not created by penumbras flowing from emanations, but rather from the actual verbiage of the constitution.

 

Hon. Jeffery S. Sutton:  Go ahead David.

 

Hon. David R. Stras: I was just going to say, just mentioning a couple: one is what I alluded to in my first answer, which was the constitutional provision that a litigant didn't know about. And that was dealing with the taxation of church property. There is a long tradition of religious liberty and non-interference with churches, synagogues, etc., in Minnesota, I think, in part, because Minnesota was sort of a religious refuge early on. And we've got a lot of religious dissidents that ended up moving here. 

 

Well, to make a long story short, in that particular case, the litigant was so focused on the statute dealing with church taxation that he forgot to look at the constitutional provision, which likely would have allowed him to win. A couple of other provisions: one is a separation of powers provision. You may say, "Well, separation of powers exists in the federal Constitution." Yeah, but it's a structural principle. There is no express provision on it. And Minnesota has a very clear provision that divides the three branches and does not allow any one branch to exercise the duties of another, with the exception of things that are listed in the constitution.

 

And I alluded to this in my first answer, which is there's an express provision to allow justices and judges to sit on the board that administers elections. And so, I did that as a member of the canvassing board. And it sets out exactly who is a member of that board. So, very different provisions than what we see in the federal Constitution.

 

Hon. Jeffery S. Sutton: Yeah, I'll just add a few more. Religion clauses, most free exercise clauses at the state level include the "right to conscience" language. Surely that goes beyond free exercise. Clint and I, we first met litigating the Ohio vouchers program. And we did very well, winning the Ohio establishment clause claims. But we lost on single-subject grounds, which, to me, confirms that those process-based guarantees can have a big role to play.

 

Now, they're not permanent. In that case, the legislature was able to re-pass the law as a single subject. But they get litigated a lot. There are uniformity clauses, right to clean environment clauses, school funding clauses. And then the whole concept of a plural executive is a really fruitful way to think about possibilities for helping your clients.

 

Hon. Sarah Hawkins Warren:  I'll add just a couple more. It sounds like Georgia is like Minnesota, insofar as we have an express separation of powers provision. We also have an express judicial review clause. What's really interesting about Georgia is that our first constitution was ratified in 1777. We've had ten of them, the most recent being in 1983. Some of these clauses were ratified in Georgia before there were federal decisions interpreting those things for the U.S. Constitution, and some were after. And that brings up some of the interpretive questions we'll have to examine a little bit later on.

 

      I'll also point out that our jury trial provision in Georgia has different language than the Federal Constitution. We say that the right to a jury trial shall be inviolate. And then, there's sort of the flip side of this, which is, what happens when the Federal Constitution has language that your constitution in the state doesn't have? And that's raised some questions with standing in Georgia. So we don't have case-or-controversy. We don't have Article III. How do you assess standing when the typical language that people look at derives from the Federal Constitution? Those are the kinds of questions that we're seeing across the spectrum when we're doing constitutional interpretation in Georgia.

 

Hon. Jeffery S. Sutton:  If I could just add real quickly, on the state separation of powers clauses that are expressed at the state level, not the federal level, that might be why, it may give the best explanation for why most state courts do not follow Chevron. In other words, they do not give final deference to the agency in construing a state statute. And it might also explain why the nondelegation principle is alive and well at the state court level, not so much yet at the federal level.

 

Hon. Sarah Keeton Campbell: Well, we could spend our whole time talking about unique state constitutional law provisions. So we may need to have a separate webinar on that. But let's move to state provisions that do have a federal counterpart. And Chief Judge Sutton, I would love for you to start in giving us your thoughts on how state courts should approach those questions. And let me tee up a couple of more specific questions under that topic.

 

      Should state courts start with a presumption that a state provision that has a federal counterpart means the same thing?  Should they start from scratch every time they're interpreting a state provision? And, in many states, we have longstanding precedents that say, "This provision is interpreted the same way as its federal counterpart." What is a state court to do with those precedents?

 

Hon. Jeffery S. Sutton:  I think the only way it makes sense for a state court to start with the federal interpretation as presumptively the meaning of the state interpretation is if that state court judge is willing to answer this question this way, "Gee, Jeff, where do you look, as a state court judge, when you're not sure of the answer to a very difficult problem?" And if you take the view, "Well, I always look to the people from Washington D.C. The air is better. The water's cleaner. They're all a lot smarter," that's fine. Go for it. And good luck in your next election. But that is the only way to think about that question. Of course, you do not look to Washington D.C. to answer questions about the Ohio constitution, the Georgia constitution, or any other state constitution. 

 

Localism is alive and well in this country, and the state court judges I've met tend to have a lot of pride about their own constitution. So I think one should start with the assumption that the state constitutions came first. They're written in very different ways. They're amended more easily. And that is really how you ought to think about it, that you look first there. And, sure, you can pay attention to federal interpretations. But I actually think sister and brother interpretations of the other state courts are more indicative or more likely to be indicative of what, say, the Ohio constitution means.

 

I'll give you another idea or two that might be helpful. This first one applies probably in about half the cases. Quite often there's another reason why the state court should think differently about the state guarantee. And that's because the federal interpretation uses a method of interpretation that does not happen to prevail on that particular state court. So, imagine a state court that is more originalist than textualist and the counterpart federal interpretation is a more freewheeling 1960s living constitutionalist method of interpretation. 

 

It's not just that that's a different sovereign and a different document, but that method of interpretation, one would think, would be presumptively wrong for a court that adopts a more textualist fixed-meaning originalist approach. So that applies quite often, and, it seems to me, is one way to think about it. I guess the other point I might emphasize, if you think about the clauses in state and federal constitutions that generate the most litigation, they tend to be very generally written. When is the search unreasonable, the punishment cruel and unusual, the speech free? 

 

If we get into substantive due process, that doesn't have any guardrails at all. It's very strange to think that the national interpretation of a guarantee ought to be the meaning for a local guarantee, when it's written in very generalized language. In my last point — which I think is one of the most exciting possibilities for the litigant with a party that needs help at the state and local level — is the U.S. Supreme Court can't do something every state court can do in this country.

 

The U.S. Supreme Court can't customize the meaning of a general guarantee to account for the unique experiences, history, culture of one's state. The opposite is conspicuously true. A justice on the Ohio Supreme Court can say, "We have some traditions, history, here, that we're proud of." And they can customize the guarantee to account for that tradition, particularly when construing highly generalized words. 

 

Hon. Clint Bolick:  Well, since no one else is jumping in, I agree with everything Jeff has said. And his books are, literally, the textbook on this subject. And I encourage anyone who is interested in this topic to acquire them and really, really, read them thoroughly. My rule for lockstep interpretation, I actually have three: never, never, and never. Even if the language is exactly the same. In that situation I think that you can presume that the framers of a state constitution intended to mirror the federal provision, but it's the meaning at the time the provision was adopted.

 

We're not licensing the U.S. Supreme Court to amend our constitution through subsequent jurisprudence. And that's what you're doing when you take a lockstep approach and just follow whatever the ebb and flow of federal jurisprudence is. When the words are similar but different, it seems to me that we need to look at the meaning of the differences and the conscious choices that were made and what the meaning of the state constitutional provision is.

 

There is such a paucity of scholarship. And for students who happen to be listening, if you want to write a law review article that is almost certain to be cited, write about provisions of your state constitution because there is so little scholarship on this. But I recently wrote an article called, "Principles of State Constitutional Interpretation" that, happily, The Federalist Society republished. And getting this conversation going so that we actually do have interpretive rules is the first step.

 

Hon. David R. Stras:  I'll just throw out a couple of additional points. I agree with Clint and Jeff. I think lock-stepping is the wrong approach.  Particularly lock-stepping for lock-stepping's sake, just to say that you're the same as what the federal courts do. But I think I understand why state court judges are tempted by it. It's easy. It's easier, at least. Having done originalism on a state court, there are no scholars that write about the unique constitutional history of, say, Minnesota or Georgia or Arizona or Ohio. And, to the extent they do, there certainly isn't a robust discussion of it.

 

      There wasn't a lot of public commentary about it. And then, getting that public commentary is very difficult. It takes a lot of work and a lot of time. Usually, went I went off and had an originalist-type opinion when I was on the state court, it took time. It took a lengthy amount of time to get there. And so, I understand why people take sort of the path of least resistance. It's not the path that I took. And it's not the path that yielded the right answer. But it's a path a lot of people take. And the reason why I say it didn't yield the right answer is because sometimes states zig when the federal government is zagging. 

 

And that's what I found in areas where I've really delved in. For example, I think someone earlier mentioned the jury trial right. Our constitution, Minnesota's constitution, was late 1850s. And there was a jury trial right. It's a little different than what the Federal Constitution says. And the question was whether an award of attorney's fees to the victor in a contract, whether that was a legal claim subject to a jury trial or whether it was an equitable claim subject to a court decision. And the federal courts have been steadily restricting the Seventh Amendment jury trial right. 

 

And it became clear to me that the state constitution did something very different. So we said that's a legal question that is entitled to a jury trial. And, to my knowledge, we're the only court in the country that has ever said that, either then or now. And it's because of the unique constitutional history of Minnesota. One more small point is that the constitutional provisions in the state may look the same when you just sort of skim them. But pay attention to punctuation and word differences, because they can have enormous outcome in the case. And I had one of those, dealing with a semicolon. I won't get into it. But punctuation matters.  

 

Hon. Sarah Hawkins Warren:  I think the gloss that I would add is that something that we have articulated in some of our more recent cases is that when we're looking at a Georgia constitutional provision that seems similar or may even seem entirely the same as a federal provision of the U.S. Constitution, we don't reflexively say "yes," and we don't reflexively say "no." We stop and pause, and say, "This is a state constitutional issue. To what extent is the Federal Constitution rooted in the same text, the same language, the same history, the same context?" And then, based on the answers to those questions, we can gauge just how persuasive case law interpreting the U.S. Constitution can be or should be.

 

And so, it's pausing there to look because we have to figure out the original meaning of our own provisions. They can be the same. But, as we've mentioned a couple of times in the call, based on any given state, and the time of ratification of their constitution, how that constitution may have changed over time, what was happening contemporaneously or even afterwards on the federal level, those are all things that have to be taken into account. But, looking at the text, that history, and the context in the evaluation is really important.

 

Hon. Sarah Keeton Campbell:  And that actually leads very nicely to our next question. If there are unique features of state governments, there are unique features of state constitutions and the structure and history of state governments, how do those unique qualities or those differences from the federal government or Federal Constitution -- how should those influence a judge's approach to state constitutional interpretation? And, Justice Warren, since you led us so nicely into this question, why don't you start us out?

 

Hon. Sarah Hawkins Warren:  I think a lot of my answer from the last question overlaps. When you're looking at your own state constitution, just keeping that independent thinking. I think it was Judge Sutton who mentioned earlier that other states' constitutions may have persuasive value. And I think that very well might be true, if that same text and history and tradition are all the same, because you're trying to figure out what people at a given time were saying and what they meant in the words that were ratified by the people.

 

I think there's a lot of really interesting academic questions — none of which I totally want to go into here — that you can game out all kinds of really interesting scenarios about state constitutional interpretation. But I do think that there are questions that we, as state supreme court justices, have to answer about interpretive methods that are unique when there's more than one constitution. And so, when you're looking at how a constitutional provision has changed over time, and, let's say, one constitutional provision from 100 years ago looks almost exactly the same as the next constitution, do you import the meaning from the earlier one into the current one?

 

And there are some canons of construction that I think are often used, like consistent and definitive interpretation. There are some rebuttable presumptions about importing meaning if there's no evidence that the meaning has changed, and things like that. And then, also, making sure that you're thinking, at the time you're interpreting, about what the federal corollaries might be and making sure that those are not getting reflexively imported without asking those same questions about the shared language and history.

 

Hon. Jeffery S. Sutton:  One thing I might add about the amendability of state constitutions: it's so striking 46 of them are amendable by 51%. And, of course, the Federal Constitution's incredibly difficult to amend at three quarters of the states. And you do wonder if that might affect constitutional interpretation. One reason people say there's evolving meaning is the words are so general. And I guess that reality could apply at the state or federal level. But I think another feature that leads to evolving constitutionalism at the federal level is the difficulty of amendment. And that does not seem like a very good explanation for creative interpretation at the state level.

 

      If a constitution can be updated by 51% votes, it's kind of hard to figure out why the state court judges should be doing the updating when it's so easy for the people to do it. And the reality of the number of state constitutional conventions and amendments kind of bears that out. The only other thing I would just point out is I just want to echo Clint's point. A lot of you, when you look at a state guarantee, you're going to see this precedent staring at you, saying, "Well, we, as the state court of Indiana," for example, "always construe our free speech guarantee the same way as the federal one." 

 

      No one really means that. I think what they mean to be saying is, historically, they have done that. But Clint's right. They don't mean to be saying they will follow the U.S. Supreme Court wherever it goes. So those are precedents, at least, when written broadly, that should not be hard to move to the side. It doesn't mean you're going to convince the Indiana Supreme Court to chart its own path. But I promise you they don't mean to be committing to follow the U.S. Supreme Court wherever it leads.

 

Hon. Clint Bolick:  Well, some good points. And our constitution is a progressive-era constitution, and that reflects in a number of unusual provisions. For example, in our declaration of rights is a prohibition against capping damages in tort lawsuits. We have an independent elected corporation commission. And those things, I think, have to be interpreted, in terms of what was intended to be accomplished through those provisions. But our constitution, like a number of constitutions, also is more explicit about the purpose and underlying values of the constitution, whether it's preambular language or language that appears elsewhere.

 

The first two sections of our declaration of rights declare that a frequent recurrence to fundamental principles is essential, and that the purpose of all governments is to protect individual rights. And, going back to a point that Sarah Warren made, that means that received wisdom from the U.S. Supreme Court, in a number of doctrines that have been adopted, should not automatically be followed.

 

And I'll just give one example. And that is the presumption of constitutionality that we reflexively imported into Arizona. And, in my research objecting to this, I could not find a single state that had not adopted that principle. But when you've got a provision in your constitution that says that the purpose of all government is the protection of individual rights, that seems to me very, very hard to square with a presumption of constitutionality. So those sorts of features, I think, command a skepticism about just simply adopting federal doctrines reflexively. 

 

Hon. David R. Stras:  I just want to add one point on amendability that Jeff talked about, which is because of the ease in which it is done, relative ease. It's still not easy. There are procedures to follow. But, because of the relative ease, a lot of states have restyled their constitutions at one or more points in time. That, obviously, hasn't happened with the United States Constitution. There's been amendments, but there hasn't been a restyling. And so, we had a restyling in Minnesota in the 1970s. And, as part of that restyling, the people who proposed it and got it passed said, "We're not changing the meaning of any of the underlying provisions."

 

      But then, I look at the provisions, and I say, "Well, you have."  It's like when you try to rewrite something that someone else has said, it changes the meaning. Or, say, it's the telephone game. And that's exactly what's happened. And not once in my entire 7 ½ year tenure did anyone argue — even though I asked the question — did anyone argue that that restyling changed the meaning of any provision. Nobody looked and said, "Actually, there's a semicolon there," or "Actually, there's a comma there," or "Actually they changed words." And so, there's really some great opportunities for lawyers to do, not creative lawyering, but good lawyering, to bring some of those things to the fore.

 

      The other point I will make -- and I remember having a conversation with then-Justice Allison Eid on the Colorado Supreme Court. Jeff, I think, might have been at this conference too. It was a very early state constitutional law conference. And she said that the Colorado constitution is like a book. It's pages and pages long, almost like a statute book. There's great variety in what constitutions look like. Minnesota's is about as short as the Federal Constitution in total words. But there are other states that have essentially codified what would normally be statutes into their state constitution. And so, paying attention to those differences is also a big part of how you interpret the provisions that are in there.

 

Hon. Sarah Keeton Campbell:  Thank you all for that discussion. Judge Stras, I’m going to stay with you for this next question. We've been talking a lot about state courts, but let's turn to federal courts. What role do federal courts have to play in either accelerating the development of state constitutional law, or sometimes impeding it?

 

Hon. David R. Stras:  It's a great question. You don't see the cases as a federal judge. And in federal court you don't see cases all that often that raise state constitutional issues, other than in the way I think a lot of us have been hinting at, in terms of how they're raised in state court, which is, at least in federal court, they tend to be companion plans. They tend to be afterthoughts. They throw them in there. So, I'm on a redistricting panel in Arkansas, and we've got state constitutional claims in that. When you have qualified immunity-type cases, oftentimes there will be a wrongful death claim if there's a death, or something of that nature, which requires you to kind of delve a little bit into the state constitution.

 

So it comes up in federal court a fair amount. And I would say the unfortunate part about it is, to the extent we have been harsh — and I don't mean to be harsh on state judges who go lockstep — the instinct for a federal judge, even more than a state judge, is to go lockstep. Because a federal judge is familiar with the federal jurisprudence. And so, they're just like, "Eh." They see the case that says, "Oh, yeah, the free speech. It says we interpret our free speech guarantee the same way." And they say, "Okay, case over."

 

As federal judges, we could be providing our view and a lot of assistance to state courts if we would engage the state constitution in the same way that we engage the Federal Constitution. But, because many of us had federal practices before we became federal judges, we don't do that. And so, I think, oftentimes, we do impede unintentionally — there's no intent — but unintentionally impede the development of state constitutional law, when we could be doing a lot more to develop it.

 

Hon. Jeffery S. Sutton:  Well, I think the only other things I might add -- I agree with what David said. I suppose when the federal courts decide to remove themselves from an area, that obviously leaves the state court, state legislature, and state constitutional amendments as the key game in town. And, arguably, we're in an era which is quite different from the Warren Court where they were kind of occupying every field, leaving almost no room for state courts. So, this could be an era where there is a lot more innovation, partly because the U.S. Supreme Court doesn't see itself as the only game in town.

 

One very practical point, just to make sure people don't lose sight of it, is federal courts can honor and respect state constitutions by certifying those questions to state courts. And I'm a little bit of a critic of the certification process right now. I feel like maybe the state and federal courts could work a little better on this. Maybe this ought to be a topic at our judicial conferences where we're all kind of coordinating. I think some federal judges worry that the state court process takes a fair bit of time.

 

And that's not always great for the litigants. I think that attitude is usually informed by ignorance, or at least not based on communications between the two court systems. And so, that probably is an area where I would say, as a lawyer, you might think about that, because that might be a way to handle the problem. And it's obviously very respectful for a federal court to, say, give the Ohio Supreme Court, for example, a first chance to look at a problem of state law before we answer it.

 

Hon. Sarah Hawkins Warren:  We get a lot of certified questions from the Eleventh Circuit. And we're always appreciative when they think of us on these matters of novel state constitutional interpretation. And we also have a two-term requirement for deciding our cases. So, once a case is docketed, we're on a clock, about six to eight months. And so, there's a lot of certainty for clients there. I'd say one adjacent point is it would be really helpful for federal judges to send their law clerks to us for a second clerkship.

 

The more great people we can get involved in the system, the more scholars we can get interested in these topics and we can develop these bodies of case law, the better it is, not just for the judges who are having to decide, but also for the litigants. Because I know there are a lot of questions about, well, how do you access this material?  How do you get familiar with these canons of construction? The more folks who participate in the process, the better. And partnering with our federal friends in that way — and I know many of you have — is a really great thing.

     

Hon. Clint Bolick:  Just to pick up on the big-picture discussion that Jeff was having, every time the U.S. Supreme Court removes an issue from democratic processes and nationalizes it, that also removes the ability of state courts to deal with those issues. And I just wanted to note the irony. And, of course, this is a bit of an ebb and flow. With the Dobbs decision, obviously, the issue of abortion is being returned to the states, including state courts.

 

But it was another time of removal of issues from the federal courts to the state courts after the Warren era that led Justice Brennan to write about the virtues of state constitutionalism. And his insights were very, very apt. But I'm hoping that, as we see both sides really embracing state constitutionalism to one degree or another, both left and right, we might have an enduring impact on state-first jurisprudence.

 

Hon. Sarah Keeton Campbell:  It is 12:45, so we're going to move to audience questions. And we have some really good ones. So, a couple of audience members have pointed out that state constitutions are amended frequently, so many states have had many constitutions. And a provision may have been adopted as part of the original constitution and then readopted over the course of time.

 

Judge Stras, you mentioned that some constitutions are enormous, whereas others are a little more streamlined.  But with the timing question, in particular — and, Justice Warren, I would love to hear your thoughts on this first — how does a state court approach that? How is the history of the provision, and whether it's been readopted, relevant to its interpretation?

 

Hon. Sarah Hawkins Warren:  This is something that we've had to tackle, because, like I said, we have ten constitutions. That's a lot of constitutions, and it shows how the people of a state can evolve over time and ratify things as they become important to them and, of course, correct or add or take away. And what we have said, sort of generally speaking, when we're looking at one provision in light of an earlier provision is if the text has not materially changed, then, generally speaking, we presume that the original public meaning of the first time that it was enacted is retained, absent evidence to the contrary. 

 

And so, it's almost this rebuttable presumption. And we have seen these interpretive methods applied in, actually, a trilogy of DUI cases that we've had in front of our court where we've had to assess the right against self-incrimination. In Georgia, we have concluded that our state law provision, constitutional provision, protects not just testimony but also acts, which is not the same as the Federal Constitution.

 

But, on the other side of things, we've said that what federal law does in Miranda does not apply in the state constitution because we don't have that in the state constitution. And so, we've had to look, over time, at how these provisions have changed, really not even just between one or two constitutions, but many, many constitutions, which does then require — and I've seen some questions pop up in the Q&A box — it requires going back, and finding and tracing the lineage of those provisions over time. And that can be a difficult endeavor. And it's a place where you have to really do some research.

 

Hon. Sarah Keeton Campbell:  Any other thoughts on that question?

 

Hon. Jeffery S. Sutton:  I would just add one other layer to it. It's sometimes the issue of reamending. Then you have the interrelation of the state and the federal, because maybe there's been federal developments. But the other fun kind of genealogy component of this is that states sometimes adopt state constitutions. So, for example — I think I have this right — the Indiana constitution was based mainly on the Massachusetts constitution of 1780. And the Oregon constitution was based mainly on the Indiana constitution.

 

So the people of Oregon have become experts on the early Massachusetts 1780 constitution. So, if you don't find this fun, I don't know why you're in law. That seems like just a great opportunity to help your client and kind of sort out the mystery. Where did this come from? And so it often involves the interplay of other states, not just state vis-à-vis the feds, which I think adds to the fun. But that's me.

 

Hon. Sarah Keeton Campbell:  Well, a couple of you have pointed out how hard this can be. These questions are really difficult. And one of our audience members raised a great question, which is, "How can we get the lawyers to do the heavy lifting on these difficult questions?" One reason lawyers might find lockstep interpretation attractive is because that's what they know too. And that's what they can more easily research. So how do you get lawyers to bring these arguments to state courts and actually develop them in a way that is helpful to state courts?

 

Hon. Jeffery S. Sutton:  Well, I would just start with -- one thing that I used to think was a positive when I was in practice, was the absence of any authority. I felt like that was an open field. It's like there's no defenders. I just can creatively run down the field and create my own rules. So, sometimes that's one way to think about it. The absence of authority means you're not hemmed in. But the second thing I might just point out: it's true there's not as much scholarship on this as you would expect, given that most cases go through the state courts. It's kind of 50 million versus 400,000. That's an incredible contrast.

 

But there are some good articles out there. So, for example, state statutory interpretation is really different from federal statutory interpretation in lots of codified ways, unique to each state. And Abbe Gluck from Yale Law School has this terrific article that kind of lays it all out. And once you're seen that article, you've got everything you need to know to figure out what to do in a state when you're trying to figure out what the state rules of statutory interpretation are, and not necessarily be obsessed about the federal ones. So don't always assume there isn't scholarship there. I think, actually, that's increasingly not the case, that there are good articles out there.

 

Hon. David R. Stras:  I would just point out it's really hard to get lawyers to focus. As a member of the court, you kind of have to set an example and start getting a reputation, I guess, for letting attorneys know that if they come, they may get hard questions about how the state constitution is different than the Federal Constitution. I remember a very good attorney appeared before me once. And I think it was a religious liberty case. And I said to him, "Well, what does the education clause in the Minnesota constitution tell us about this religious liberty question?" 

 

Again, deer in the headlights, because he hadn't thought critically about the education clause and its interrelationship, even though it used similar language. And so, you have to sort of set an example. The problem I always had was my colleagues were so resistant to ask for supplemental briefing for anything that asking attorneys to brief an originalist question was not something I normally was successful at. And so, the best I could do was hope that people were prepared to get that oddball question from me about some history of some provision they were talking about.

 

But I think that Jeff is exactly right. It is like an open highway. You can go in any direction you want. You've got to have the evidence, but you can really sort of forge your own road. And with a lot of federal constitutional provisions, with, maybe, the exception of the Third Amendment on quartering soldiers, there's a ton of stuff out there. You have no freedom, really, to make new and exciting arguments. But you have a lot of freedom to do it in state court.

 

Hon. Sarah Hawkins Warren:  Well, and on that note -- I'm sorry, Justice Bolick.  Go ahead.

 

Hon. Clint Bolick:  That's quite okay.

 

Hon. Sarah Hawkins Warren:  But just a finer point on that note. If you are a practitioner, and you realize that one of these questions has come up in your case, really, obviously, you want to know sooner rather than later. But, even if it's before argument, even if it's after argument, ask for an extension on a brief. Ask for your ability to do a supplemental brief. 

 

If you alert the judges, they may be more inclined to give you a little bit of latitude and a little bit of time. Because if the litigants aren't doing it, we have to. And, as we've said, it's a difficult process, and our resources are constrained. We've got to get it right. And so, we appreciate it when practitioners get in the trenches and try to do some of that historical research too.

 

Hon. Clint Bolick:  So, the most devious thing that we could do is put state constitutional questions on the bar exam. And then, when everyone flunks, the law schools will start teaching this. And you mentioned, Sarah Campbell, that I teach constitutional law. I don't. I only teach federal constitutional law. And I always try to bring in state constitutional provisions, as well. But I suspect that most con law professors do not do that.

 

But, for my part, as soon as I got on the court, any time there was an obvious potential state constitutional issue that was not raised or developed — and sometimes they're stated, but not developed at all — I would drop a footnote in an opinion saying, "Gee, I wonder what this means. It's a shame the party didn't tell us about this," which has to be embarrassing, at the very least. And, over time, as my colleagues have also grown much more attentive to this, we will ask for a supplemental briefing, or we'll mention it in an opinion.

 

We used corpus linguistics in an opinion recently. And guess what? One of the next cases that came up, the lawyers used corpus linguistics. So, I think this, unfortunately, starts with the courts themselves insisting upon it. But I do have to mention that the tremendous growth in Federalist Society programs around the country on state constitutional law has just been an enormous blessing. And at least people who attend Federalist Society events will probably not forget to develop state constitutional arguments.

 

Hon. Jeffery S. Sutton:  Sarah, if I could just add one other practical tip. This just proved my eagerness about becoming a state court judge. Forgive me. But let's just say you've lost. Let's say you've lost at the state intermediate court of appeals, or it's only one layer of review at the state trial court. As long as you've preserved the state con law issue, I just can't think of a more enticing question to a state court with a discretionary writ request than, "Does the Indiana constitution have the same meaning as the Federal Constitution?"

 

Or does something that is just about state con law -- well, here's a great one. This will provoke everyone. Does the Indiana constitution lockstep with the Federal Constitution on free speech?  I don't think there's a state court judge in the country that's not going to look carefully at that point. So, here's a situation where you've lost. You're trying to get the court to take the case. And I'm just telling you, a state constitutional question in the jurisdictional request probably will help you quite a bit.

 

Hon. Clint Bolick: Well, and Jeff, the flip side of that is that the courts, themselves, can reframe the questions on which they grant review. So, either way, it's a great way to move it forward.

 

Hon. Sarah Keeton Campbell:  All right, one final question. So, this audience member points out that Judge Stras went to the University of Kansas and is wondering if there's an advantage — if you care about state constitutional law — if there's an advantage to attending a state law school instead of an Ivy League law school. Any response, Justice Bolick?

 

Hon. Clint Bolick:  No.  Unfortunately, they're just as bad as private law schools. I suppose that you're more likely to have exposure in a non-national school, any non-national school. Like, I assume at Loyola in California you're more likely to get exposure to California state constitutional law than you would be at Stanford, for example. But I haven't even seen that, quite frankly. And that's really unfortunate. '

 

Hon. Sarah Keeton Campbell:  What can be done about that? Should we encourage students to organize their own ad hoc -- at Duke we had ad hoc seminars. Students could initiate those and recruit a professor to be an advisor. Any other ideas?

 

Hon. Jeffery S. Sutton:  Well, one -- go ahead Sarah.

 

Warren:  I was really going to just compliment you.  So why don't you do the speaking?

 

Hon. Jeffery S. Sutton: I was just going to say, the silver lining in this is how they teach classes on federal con law, which is, all the problems with federal con law, or all the problems with, more specifically, Judge Sutton's opinions about federal con law. Once you know that lesson of federal con law, you have all you need to know to go to a state court and not make the mistakes Judge Sutton made.

 

I'll just make one other point. Once you learn a little bit more about state constitutions, you realize the line between state schools — David and I both went to state schools — and, supposedly, the elite schools. It turns out, when you read the Massachusetts constitution of 1780, you learn that Harvard, in fact, is a state school. It's mentioned about five times in the Massachusetts constitution.  The idea that they're an elite private school is a fraud. All you've got to do is read the Massachusetts constitution. They are a state school, no less than the University of Kansas and the Ohio State University. So, there is no line.

 

Hon. Clint Bolick:  The one other thing I would point out is what Sarah said earlier, which is, there are externship and internship programs in state courts. And there are a ton of state courts. In Minnesota, we have over 300 state court judges. That's a lot of potential openings for students who want to become more interested in state law and state constitutional law. So, maybe if you're not getting it from your law school, you can venture out and get an externship some summer and learn all about state law and provide assistance to state courts.

 

Hon. Sarah Keeton Campbell:  We have one minute left. Does anyone else want to promote state court clerkships?  I'm all for that.  Justice Warren, do you have anything to add?

 

Hon. Sarah Hawkins Warren:  That's an obvious yes. I mean, these things don't have to be exclusive.  If you're somebody who's really interested in appellate law, great. And if you can clerk on a federal appellate court, great. Absolutely, do it. Think about also clerking on a state supreme court because the work we do is different. And we have a tremendous respect for our brothers and sisters in the federal system. And I hope that they have the same respect for us. I think they do.

 

But I think we would all say, if we really kind of got down and looked at our dockets, that the work we do has a lot of similarity. But there's so many unique features of state supreme courts, and state courts more generally, many of which we've highlighted here. So I hope students of all stripes, from all backgrounds, from all schools, will think about clerking on state courts, and, in particular, state supreme courts. Because that's my self-interest there, plugging.

 

Hon. David R. Stras:  Well, let me, just quick, throw out a very quick plug as well. I can see, because I've done both of these things, and I think that the difference in state supreme court especially, where you get time to deliberate and really think about questions, versus a federal appellate court. When I was on a state supreme court, we wrote 15 to 20 majority opinions a year. Now that I'm on a federal court of appeals, I write 60 majority opinions a year. The pace is different. The amount of time you get on the cases is different. Whatever you want in a clerkship, there's great opportunities in both of them. So, if you prefer a more deliberative environment, then a state supreme court would be a great place to go.

 

Hon. Jeffery S. Sutton:  I actually think we have the comparison all wrong. It's whether you want to clerk on the U.S. Supreme Court or a state supreme court, those are the high courts. If you can get the U.S. Supreme Court clerkship, go for it. But if you don't, there are 50 high courts to go to. Do you want to have the final say, or not? So, people seem to like U.S. Supreme Court clerkships, so they should definitely like state supreme court clerkships.

 

Hon. Sarah Keeton Campbell:  Well, that is a great note on which to end. Thank you so much to our panelists. This was interesting and informative. And we really thank you for joining us and sharing your expertise.

 

Emily Manning:  On behalf of The Federalist Society, I want to thank our panelists and our moderator for the benefit of their time and expertise today. And thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, fedsoc.org, or follow us on all major social media platforms at Fedsoc to stay up to date with announcements and upcoming webinars.  Thank you once more for tuning in. And we are adjourned.