Response to the University of Illinois Law Review Symposium

When I imagine what the pioneers prioritized when they settled the West as it expanded from Ohio to Montana to Oregon, I suspect a legal library was not at the top of the list. Life was too hard to allow it. No one earned an invitation to a trip on the Oregon Trail based on the size of the library they planned to take with them.

Which prompts this question: What happened when they reached the end of the Trail and it came time for the people of the Oregon Territory to apply for statehood and to write their own constitution? Where did they look for guidance? Some States, it’s true, had the assistance of knowledgeable scholars. Thanks to funding by railroad interests and unbeknownst to the people of North Dakota at the time, James Bradley Thayer was a co-author of its constitution, and Thomas Cooley spoke at the debates over it.1 But surely that was not true for every State. In these other States, it’s hard to believe that the blacksmith or woodsman or even the lawyer had a raft of resources they could use as a model for drafting a new constitution. And yet they must have had something. Perhaps some serendipity entered the picture—say the happenstance that a settler from Indiana brought a copy of his State’s charter, prompting the first Oregon Constitution to share similarities with the Hoosier State’s Constitution.2

In writing 51 Imperfect Solutions, I sometimes felt like the blacksmith and woodsman, knowledgeable about some features of state constitutional law but worried there was plenty more to know and too busy with my other job to sort out every mete and bound. With this generous symposium about the book and with the contributions of these top-drawer scholars, I now know I was right. There was, and is, a lot more to know about state constitutions, and I wish they could have guided me from the outset.

Much of what I have to say in response to their thought-provoking contributions comes in the form of confession and avoidance—acknowledgments about the valuable insights by each scholar and suggestions for adding these ideas to the dialogue about our essential, but much neglected, state constitutions.

It’s not often I get outflanked in identifying new ways to take state constitutional law seriously. But give credit where it’s due: Professor Jason Mazzone has done just that with Radical State Constitutionalism, in which he proposes placing state constitutions more “at the center in the making and remaking of American constitutional law” than I do.3 He targets a nagging problem, that state courts too often presume that the meaning of a state guarantee should mimic the meaning of its federal counterpart. What’s the use of a marketplace of constitutional experimentation if just one participant dominates the market and the rest follow it in lockstep? One way around that problem, suggested by Hans Linde and seconded by me in 51 Imperfect Solutions, is for state courts to resolve state claims before they resolve federal claims and, even then, only to resolve the federal claims if the court denies relief under the state constitution. That approach forces state courts, in the lasting words of Hans Linde, to do “first things first,” to prioritize state law in resolving claims against a state.4

Professor Mazzone likes that idea so much he wants federal courts to do the same thing—to ask whether the relevant state constitution provides relief before reviewing the federal claim even if the claimant did not bring a state law claim on her own.5 Radical for sure. Useful too. But roadblocks loom, as Mazzone appreciates.6 One is overturning cases establishing that federal civil rights claims do not have an exhaustion requirement.7 While Monroe v. Pape and Patsy v. Board of Regents deploy an approach to statutory interpretation—construing section 1983 in each case—that looks quaint today, it’s fair to wonder whether the Court would look anew at it, even as textualism has become a fixed feature of federal interpretation. It’s also to fair to worry whether plaintiffs should be denied the option of being the master of their complaint, of being able to rely on federal law alone without adding state law complications to the mix.8

Still, the United States Supreme Court has not held firm to the Monroe and Patsy line. Parratt v. Taylor9 addressed an inmate’s federal due process claim over the loss of mail. To determine whether the petitioner “suffered a deprivation of property without due process of law,” the Court reasoned that it must look to “whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process.”10 That’s an opinion Professor Mazzone might well have written. It’s a due process claim to be sure. But ask yourself how many federal constitutional rights applied against the States don’t involve the Due Process Clause, the source of incorporation of most of the Bill of Rights?

Far be it from me to stand in the way of this clever innovation. But for now, it may be best to urge more state courts to follow the Oregon model—to insist that all state claims be resolved first, then to consider the federal claims only if the individual is ineligible for relief under state law. It has worked in Oregon, and there’s no reason to think it can’t work elsewhere. Recall that the last time we had statistics on the point, the state trial courts heard 84 million cases in the year and the federal trial courts heard about 400,000.11 Fixing the state court problem first does not require overruling precedent and will affect far more cases to boot. We also live in an age in which the federal courts are not the only ones willing to innovate new rights.12 If these efforts to place state constitutions at the forefront of American constitutional law make little headway over time, it may well be appropriate for the federal courts to lead by example and to follow the Mazzone trail along the way.

Any debate about the proper place of state constitutions in American constitutional law eventually must account for the push for uniformly protected rights and the pull for diverse approaches to thorny issues. Joseph Blocher and Molly Brady masterfully explore both dynamics in their contributions. Blocher’s piece shows that the federal courts of appeal operate in some ways like a miniaturized version of what goes on in the fifty state-court systems. Just as state courts read their liberty and property guarantees against the backdrop of local customs and history, so too do the federal appellate courts from time to time. They “exhibit[] some of the kinds of diversity and nonuniformity” that we’ve come to associate with the state court.13 And that can be a good thing. Especially on issues like obscenity and sentencing, where there’s some benefit at the margins to regional federal courts attuned to regional differences. Blocher’s account confirms that the dichotomy “between fifty-one imperfect solutions” at the state level and “a single imperfect one” at the federal level does not always hold.14 And he shows benefits from this federal variation—that it increases, for example, the likelihood that the United States Supreme Court will see diverse approaches and perspectives from state and federal courts before it announces a winner-take-all approach. I also agree with him that differences between interpretation and construction, along with the perennial bugaboo of levels of generality in application, inevitably will prompt some local “dialects” and “accents” in the application of federal law in the federal courts.15

But differences linger. When it comes to statutory issues like interpreting federal sentencing laws, I have no doubt that some diversity exists among the federal courts and that quite often the United States Supreme Court presumably takes the view that further national refinement is not worth the price. But the statutory nature of the problem means Congress always has the right to enter the mix—to preempt differentiation or not. A goal of increased uniformity in sentencing practices after all motivated the 1984 Sentencing Reform Act and the creation of the United States Sentencing Commission. When it comes to federal constitutional law that incorporates state law, such as property rights, any diversity in the application of the federal doctrine is built into the system.

There’s also a salient difference between the state and federal court systems when it comes to the utility of diversity. State courts may customize, indeed should customize, their constitutional rulings to account for local text, history, and culture. That’s why no one doubts the propriety of decisions by the Maryland, Pennsylvania, Rhode Island, or Utah Supreme Courts that customize interpretations of their free exercise clauses to account for their pasts. But does anyone think it would be proper for the United States Supreme Court to customize its interpretation of the federal free exercise guarantee to account for just one part of the country or just one group in it. Another difference is that the United States Supreme Court sets a federal constitutional floor for the federal courts of appeal that they cannot breach, necessarily limiting the market of innovation.16 Not so for the state courts, which may construe their state constitutions to go above or below the federal floor. Through it all, I embrace Blocher’s insight that helpful variation occasionally occurs in the federal courts of appeals over the meaning of federal law, and sometimes those benefits parallel comparable benefits at the state level. Which is why I would not grant “a scholarly motion to dismiss” on the ground that “such variation” should be “rejected out of hand.”17 But over time, it seems to be the rare topic of federal constitutional law, such as obscenity law, in which “the application of a single constitutional principle will lead to different results in different places” for very long.18

In thinking about Blocher’s point and my reaction to it, keep this caveat in mind: Where you stand on an issue often depends on where you sit. I sit as a federal court of appeals judge wired to prefer uniformity throughout the federal system. And that reality may obscure many of the benefits of his approach, save one that is not lost on me: I would not be reversed as often.

Molly Brady explores the flip side. If Blocher highlights federal diversity, Brady sheds light on instances when state courts have been too uniform in addressing property rights. She agrees, as I do, that “takings scholarship” in particular and “constitutional scholarship” in general have “suffer[ed] from a “preoccupation with Supreme Court doctrine” that has “obscured important trends in . . . state forums.”19 And she agrees, as I do, that in recent years that has changed to a degree. State courts recently have provided a counterbalance to federal property rights interpretations, through their energized rejection of the United States Supreme Court’s decision in Kelo v. City of New London20 that a city could use its eminent domain power to support a private economic development without violating the “public use” requirement of the Takings Clause. Good luck to the city that tries to casually follow New London’s path in state court today. A wide variety of diverse limitations on the exercise of that power under state law will greet them.21

But in other ways, Brady points out, state courts lockstep with neighboring states, hampering their trial-and-error role over vexing property law issues. As to that, Brady “submit[s] a fifth story” about property law that “varies in some important respects from” the four substantive chapters in 51 Imperfect Solutions.22 Offer accepted. Her story of federal and state law illustrates, once again, the danger of any generalization about American constitutional law. Takings law, she shows, has sometimes been “marked by uniformity, rather than variation and innovation—uniformity driven, in part, by the force of other states’ rules” and a surprising instinct to follow each other.23 And that has often been true in spite of “the relative irrelevance” of federal takings law “for most of the nineteenth century,”24 though state variation occurred at times and though it sometimes set the stage for federal cases, such as Penn Central.25 She raises deep questions about why state court experimentation has often been lacking in property law, even though “there is nothing more local . . . than land.”26 “If courts are capable of variation in a thicket as robust as due process,” she wonders, “it is not clear why takings protection for property should be any different.”27 Agreed.

Read in harmony with Blocher’s exploration of the federal courts, the two articles suggest that experimentation depends as much on the mentality and psychology of judges as it does on the forum, whether state or federal. If federal courts can embrace diversity, and state courts uniformity, this project is not just about venue but about judging itself.

Be wary by the way of the temptation to accept the occasional suggestion that uniformity always favors greater rights protection. One central explanation for the creation of a national exclusionary rule in Mapp v. Ohio28 was the perceived imperative of having one set of search-and-seizure rules for all Americans.29 But we have more diversity today in search and seizure law than we had before 1961. That’s because the United States Supreme Court eventually created exceptions to the exclusionary rule and in some instances lowered the requirements of the search and seizure guarantee—and many state courts filled those gaps. No one worries about that disuniformity today. Too often, concerns about uniformity stand as a proxy for liking a right—and liking a right alone.

Jud Campbell and James Stern offer vivid historical accounts that shed light on how state constitutional law operates. Jud Campbell’s piece offers a solution to a question I’ve pondered for some time. After Buck v. Bell30 rejected challenges to state involuntary sterilization laws under the Fourteenth Amendment, state court innovation stopped. Why? Recall that state courts had been assessing, and frequently invalidating, sterilization laws for some time before the United States Supreme Court’s decision.31 Nothing about Buck v. Bell prevented them from continuing down that road. Just the opposite: Buck v. Bell made it more imperative, as the decision left state constitutions as the only bulwark of liberty standing. Campbell’s piece suggests that the rights framework in the pre-Erie era offers an answer. Because both state and federal courts sought to “discover” constitutional rights, perhaps state courts simply thought the federal Supreme Court had uncovered the proper answer to the same question they had been considering.32 If so, Campbell’s piece offers hope for independent interpretations of state constitutions. Erie’s framework together with the triumph of legal realism changed all that, as it permitted state constitutions to provide their own independent fountain of rights. For that reason, state courts today, if not state courts after Buck v. Bell, have ample freedom to break from federal constitutional holdings with which they disagree in construing their own constitutions.

James Stern takes on a related concern. His argument that First Amendment incorporation paved the way for a winner-take-all approach in criminal procedure rings true. Small incursions into state diversity can work larger ones. And he usefully explains how Brandeis and Holmes justified incorporating the First Amendment on a Lochnerian basis.33 But anyone interested in Lochnerism—particularly from a libertarian perspective—should find state constitutional law a potent weapon. Though Stern’s piece suggests that Lochner might have laid the groundwork for curtailing state diversity, recent high-profile state cases show that state courts that care deeply about property rights and economic interests can turn to state constitutions.34 That the United States Supreme Court so far remains reluctant to strike down economic regulation in the post-Lochner era matters not. For state constitutions can be read to go both above and below federal guarantees, even those worded identically to each other.35

Judge Walker and Alex Van Dyke pull the symposium together by examining those same libertarian impulses more fully. I agree with their conclusion that state constitutional law offers more safeguards of liberty. Two shots are superior to one from the vantage point of a libertarian. A plaintiff who can challenge a law on federal and state grounds always stands a better chance of stopping governmental action, making libertarianism a “clear ideological winner” where state constitutions are given their full due.36

But they are also right to highlight that state constitutional law is not necessarily libertarian about the meaning of law. For one, the state shot may be less protective than the federal guarantee.37 For another, state constitutional law occasionally recognizes positive rights that obligate the State to act in ways that may offend some libertarians. But I’m skeptical that positive rights will work quite the incursion on individual liberty that they suggest. Federal courts, too, may issue positive-rights decisions, as the razor-thin margin of the Court’s 5-4 education-funding decision in Rodriquez suggests. And even where state positive-rights decisions in education have taken hold, it isn’t obvious that they have hampered individual autonomy or liberty—even if the public education budget grows while other agencies’ budgets shrink. Even then, the courts’ role in that growth is modest, as no state court has yet taken upon itself the authority to order a legislature to increase taxes—what would truly increase the size of government.

Still, in a world where state constitutions play a far greater role in our understanding of rights, I accept that anything could happen and thus that in some cases it could lead to counter-libertarian results. State constitutions, like federalism itself, ultimately amount to neutral safeguards of freedom—sometimes leaning against the government, sometimes leaning for it. Just ask Justice Brennan and Justice Scalia. The former wrote a landmark article in support of independent state constitutional rights in 1977,38 and the latter acknowledged their role in his last opinion for the Court in 2016.39

All in all, I wish these impressive scholars had been there to guide me in writing 51 Imperfect Solutions. But I plan not to make the same mistake twice. If I write a sequel to the book, one that shifts from individual rights to federal and state stories about structure and balance of power in American constitutional law, I will make sure to include each of their penetrating insights.

a Judge, U.S. Court of Appeals for the Sixth Circuit.

1. See Elwyn B. Robinson, History of North Dakota 207–08 (2017); Journal of the Constitutional Convention for North Dakota 52 (Tribune, State Printers and Binders 1889).

2. See Crafting the Oregon Constitution, State Archives, Or. Secretary of St. (Sept. 17, 2020, 3:32 PM), (explaining that the framers of the Oregon Constitution were primarily from the Indiana area). Maureen Brady points out in her piece that, “of the 137 sections of the original California Constitution 66 were adapted from the Constitution of Iowa and 19 from the Constitution of New York.” Maureen E. Brady, The Domino Effect in State Takings Law: A Response to 51 Imperfect Solutions, 2020 U. Ill. L. Rev. 1455, 1476 (2020) (quoting Diamond v. Bland, 521 P.2d 460, 465 (Cal. 1974) (Mosk, J., dissenting)).

3. Jason Mazzone, Radical State Constitutionalism, 2020 U. Ill. L. Rev. 1401, 1413 (2020).

4. See Hans A. Linde, First Things First: Rediscovering the States Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

5. Mazzone, supra note 3, at 1403 (“What the state has done should include consideration of what the state constitution actually permits. 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 has been violated.”).

6. See id. at 1407–08.

7. See Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982) (“[W]e conclude that exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.”); Monroe v. Pape, 365 U.S. 167 (1961); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).

8. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908).

9. 451 U.S. 527 (1981).

10. Id. at 537.

11. See Jeffrey S. Sutton, A Response to Justice Goodwin Liu, 128 Yale L.J. F. 936, 942 (2019).

12. Compare Rucho v. Common Cause, 139 S. Ct. 2484 (2019) with League of Women Voters of Pa. v. Pennsylvania, 178 A.3d 737 (Pa. 2018) and Common Cause v. Lewis, 834 S.E.2d 425 (N.C. 2019).

13. Joseph Blocher, Disuniformity of Federal Constitutional Rights, 2020 U. Ill. L. Rev. 1479, 1481 (2020).

14. Id. at 1485.

15. Id. at 1499.

16. Id. at 1488, 1496.

17. Id. at 1491.

18. Id. at 1486.

19. Brady, supra note 2, at 1477.

20. 545 U.S. 469 (2005).

21. See Ilya Somin, The Grasping Hand: Kelo v. City of New London & The Limits of Eminent Domain 135–164 (2d ed. 2016) (exploring the diverse responses at the state level to Kelo and finding some more property protective than others).

22. Brady, supra note 2, at 1456.

23. Id. at 1457.

24. Id. at 1459.

25. Id. at 1469 (“[M]uch of Penn Central was anticipated by state cases.”).

26. Id. at 1473.

27. Id. at 1474.

28. 367 U.S. 643 (1961).

29. Id. at 657 (“There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State’s attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment.”).

30. 274 U.S. 200 (1927).

31. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 94–108 (2018).

32. See Jud Campbell, Constitutional Rights Before Realism, 2020 U. Ill. L. Rev. 1433, 1451 (2020).

33. James Y. Stern, First Amendment Lochnerism & the Origins of the Incorporation Doctrine, 2020 U. Ill. L. Rev. 1501, 1535 (2020).

34. See, e.g., Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 98 (Tex. 2015) (Willett, J., concurring) (“Today’s case arises under the Texas Constitution, over which we have final interpretive authority, and nothing in its 60,000-plus words requires judges to turn a blind eye to transparent rent-seeking that bends government power to private gain, thus robbing people of their innate right—antecedent to government—to earn an honest living. Indeed, even if the Texas Due Course of Law Clause mirrored perfectly the federal Due Process Clause, that in no way binds Texas courts to cut-and-paste federal rational-basis jurisprudence that long post-dates enactment of our own constitutional provision, one more inclined to freedom.”).

35. See State v. Brown, 920 N.W.2d 840, 860 (McDonald, J., concurring specially) (“Certainly, as a matter of federal law, state courts are bound not to apply any rule which is inconsistent with decisions of the Supreme Court; the Supremacy Clause of the Federal Constitution clearly embodies this mandate. It would be a mistake, however, to view federal law as a floor for state constitutional analysis; principles of federalism prohibit the Supreme Court from dictating the content of state law.”).

36. Justin Walker & Alex Van Dyke, A Nonpartisan Necessity: State Constitutional Law as an Evenhanded Source of Rights, 2020 U. Ill. L. Rev. 1415, 1417 (2020).

37. See Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1973–74 & n.72 (2008).

38. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

39. Kansas v. Carr, 136 S. Ct. 633, 641 (2016).

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