Radical State Constitutionalism

In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Jeffrey Sutton rightly highlights the past significance and future potential of state constitutions and state courts to our system of constitutional government. But Sutton does not push his argument as far as he might. This review essay assesses and builds upon Sutton’s approach in order to offer a more radical version of state constitutionalism than Sutton himself proposes. The essay argues that almost every legal claim, whether in state or federal court, that state government has violated the federal Constitution requires determining whether the state constitution itself permits or prohibits the challenged state governmental action. That issue is relevant even if the plaintiff has not asserted a state law cause of action. For if the state constitution forbids a challenged state law or state executive conduct, and a ruling to that effect fully remedies the complained-about state action, the case can end with a judgment in the plaintiff’s favor, without a ruling on whether the federal Constitution itself was violated. Radical state constitutionalism puts state constitutions at the very center of American constitutional law.

a Albert E. Jenner, Jr. Professor of Law and Director, Program in Constitutional Theory, History and Law, University of Illinois at Urbana-Champaign.

The full text of this Symposium is available to download as a PDF.