When representing clients, attorneys often think of constitutional rights only in terms of the federal constitution. But this narrow focus leaves out the 50 state constitutions, which can offer different and more protective rights than their federal counterpart. From his experience as Ohio Solicitor General through his time on the 6th Circuit, Judge Jeffrey Sutton has seen the impact that state constitutions can have on the rule of law. In his 2018 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Sutton outlined the ways raising state constitutional claims can improve a client’s odds of success and provide greater protection of rights. In this episode, Judge Sutton joins Jody Sanders and Todd Smith to discuss considerations and strategies for parties who might otherwise forgo state constitutional claims. He also reflects on his time as a clerk for Justice Antonin Scalia—a phase of his career that influenced his later endeavors and his love of the law.

Listen to the podcast here:

Litigating Issues Under State Constitutions | Judge Jeffrey Sutton

We are extremely honored. Our guest is not from inside Texas, but because we feel good advocacy does not have borders and we can learn a lot from other states. We are very fortunate to have Judge Jeffrey Sutton of the Sixth Circuit joining us. Judge Sutton, thank you for being here.

Thank you for inviting me. It’s great to be with you both.

Before we get started, we always like to let our guests give a little bit of background. With you being on the Sixth Circuit, I know a lot of people know your name but, probably in Texas, may not know all that much about you. Can you tell us a little bit about your background and where you came from?

I live in Columbus, Ohio. I practiced at Jones Day for a while. I was the Ohio Solicitor General in the ‘90s. I went to Ohio State Law School and I have been on the Sixth Circuit since 2003. Before joining Jones Day, I clerked for a couple of years on the Second Circuit, which is New York, Connecticut and Vermont. I then clerked for Justice Powell and Justice Scalia on the US Supreme Court. When I was in practice, I was primarily an appellate lawyer. It’s hard to do that exclusively, but my last five years at Jones Day were in the 75% to 80% category in terms of appellate work.

When it wasn’t appellate work, it was related to briefing, summary judgment motions or dispositive motions. For me, going to the appellate court wasn’t a huge transition. I’d been on the other side of the bench for quite a while, but it is a transition to this side and does not have a client unless your client is the rule of law, which I’d like to think mine is. It’s not the conventional client and not one that pays me anything more than the same salary every other federal judge gets, which creates everlasting disappointment.

I love the idea of a judge’s client being the rule of law. It seems like that’s a very faithful way of approaching how you attack your duties as a judge.

If the idea when we take the oath is to be neutral as between rich, poor and whoever is in front of us, what does neutrality mean? Neutrality means honoring what the people have done through their representatives and statutes and by ratifying constitutions. We’re just agents of that and not the principal, the client is. The people and what the people have done in law, which is the rule of law. The thing I might add about that, which had not occurred to me until your comment was that it’s helpful for advocates to remember that point. In other words, you do have a conventional client breathing or corporation or government.

It’s not that you leave that at the door. It’s not a bad idea when you’re trying to persuade judges without clients, other than the rule of law. Remember that perspective. I sometimes think when I see lawyers that are pushing hard, “What’s going on?” To their credit, do they really care about their client? Who can say that’s a bad thing? It’s a great thing. The question is, “What to do with that emotion?” Sometimes that emotion gets channeled into higher volume points, talking over judges, a little frenetic attitude about it. It’s so much better to remember you’re in front of a group of people that are supposed to be neutral as between both of these real breathing clients and do their best to honor the rule of law. If you pitch the argument the right way that, “Here’s the way the rule of law works,” you’re going to be speaking their language.

That’s a great way to put it. That’s a perspective I hadn’t put on that idea, but I like that as a way to frame both your briefing and oral argument to the court and what you’re trying to get to in terms of the result. Before we move along, you have a unique experience that you got to clerk for two US Supreme Court justices, which is amazing. How did that work out?

TALP 41 | State Constitutional Law

51 Imperfect Solutions: States and the Making of American Constitutional Law

It’s unusual. At that time, I was hired by Justice Powell, who is retired. This is 1991 and 1992. A retired justice at the US Supreme Court gets one law clerk. I was Justice Powell’s law clerk for that year. The custom at the court is for the clerks for the retired justices to sign on to be the fifth clerk for an active Justice’s chambers. It had a big effect on my career. I signed on to be Justice Scalia’s law clerk. You might think, “That must be because you were politically conservative or textualist or an originalist.” How untrue all of that is. I was developing sympathies towards originals and textualism, but that was not what motivated me. What motivated me is because, in law school, it’s not as if all these judicial opinions you read in law school.

I’m responsible for this problem. It’s not as if it’s inherently fun. That’s why lawyers drink so much coffee. Lo and behold, you’re drinking your coffee. You’re amped on that. You’re trying to get ready for this class and along comes a Scalia opinion. You don’t need coffee for Scalia opinions. You find yourself smiling, sometimes laughing and writing. It’s captivating. I had two reasons why I wanted to work for him. One, he seemed like a funny guy. I thought, “What fun to be around someone with such a razor wit and flinty mind. Life would be good if I could begin to write even within the same ballpark as the way he writes.” That’s a ridiculous goal, but when you’re young and naive, you think you can do anything.

I did want to work for him so I could learn to write like him. That hasn’t played out. I think I’m a better writer for it. Whatever the quality of my writing, this is another thing about Justice Scalia that is memorable and I’m grateful for, you couldn’t come out of that experience without loving law, including ERISA cases. Everything was fun when you were in those chambers. All these cases were fun. He seemed to think every one of them was this epic Marbury versus Madison case of finding the right answer. That is intoxicating. I’m many years out of that experience and maybe one year I’m suddenly going to go, “That was crazy. This isn’t that much fun. I’m going to go back to watching sports.” So far, that has not happened. This has been the gift that keeps on giving. I enjoy writing opinions, looking into them, figuring them out and I give a lot of credit to Justice Scalia for that.

You are the first person I’ve ever known who professed that they loved even ERISA cases. I don’t think I’ve ever heard anyone say that before.

I did say even.

Is there a mini Justice Scalia that sits on your shoulder while you’re writing or editing your stuff? Do you filter your writing and editing through what you think he would say about what you’re doing?

I have a funny story that illustrates that a little bit. I’m sitting in Justice Scalia’s chair he uses at the court. When he passed, the family said, “Jeff, what would you like? His seat or his chair?” I thought, “What’s the difference? I’ll take the chair.” That was a big difference. I thought, “I’d much prefer the seat.” The very first day when it arrived, I was working on a case in an area that he would have found interesting. I had a couple of insights and inspirations, but after that, back to the old run-of-the-mill pedestrian Judge Sutton. It was temporary.

The thing on the shoulder, that metaphor, Justice Scalia is a big presence and all of his clerks, when they’re working on hard cases, particularly a difficult move in a case, it’s easy to hear his voice. I found that particularly true when I was practicing in the court because he was still there. I was thinking about how he would think about it. This has a little bit to do with the influence he’s had. He had such clearly articulated views. There’s some real value to that in terms of influencing people. It doesn’t prove you’re always right. You may alienate people with the clarity of your views, but it also improves the influence point because it’s memorable in its clarity. The answer is I do think about him quite often.

You were part of putting together The Essential Scalia collection that was published.

It is the third book since his passing. My co-clerk for Justice Scalia in ‘91-‘92, Ed Whelan, Ed has been the editor of all three books. The first one was Scalia Speaks. The second one was On Faith. The first one was his speeches on all topics. On Faith is understandably a faith-related book. This third one, The Essential Scalia is his legal writing. It’s got excerpts from articles and books that lay out originalism, textualism, his view of judging and the importance of rules to the rule of law, his legal writings and all these different topics, substantive process, free speech and administrative law. It was a labor of love. It was a lot of fun too.

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I thought I knew most of this because I’d read so much of it. One of the great things about Scalia is you can come back to an opinion you’ve read three times before and suddenly see something you hadn’t seen before and maybe an appreciation of the way he expressed it or thought he had that for whatever reason, I couldn’t appreciate the first or even the second time I read it. It’s been fun to speak about it. For what it’s worth, it goes back a little bit to the rule of law point. The way I tell my students in law school, “No one is going to hire you because you are an originalist or a textualist or living constitutionalist or purpose of this. That’s not how it works. Clients are going to hire you because you speak all the languages of appellate litigation, constitutional and statutory interpretation.”

What I think is valuable about The Essential Scalia is, in the state and federal courts, there’s a good percentage of people that speak his language. Maybe half, and maybe this is the way it breaks down. It’s half and half. Half of a Brennan and half for a Scalia. Let’s call it Scalia-Ginsburg. It is even better. In this book, you can read the 300 pages and by the time you’re done, you know that language. You have to learn the other language because otherwise, you’re going to be an ineffective advocate. One great thing about this book is if you understand those 300 pages, you know the language. That’s valuable. It was something that I enjoy doing.

That’s a great way to think about it because often people do put themselves in the box of, “I’m a textualist. This is the approach.” You have to think about it more from the decision-maker’s standpoint of how they approach it and are you talking to them in the way that they’re going to understand and be able to apply it to the facts of your particular case. The reason we asked you here originally, and another book that you’ve put together, is the 51 Imperfect Solutions book which talks about the idea of State-Specific Constitutional rights versus Federal Constitutional rights and how those developed. How was that an issue that you got interested in in the first place? That’s an interesting topic for a federal judge.

I can deepen the mystery. I’ve been on the bench for almost twenty years. I’ve only had 1 or 2 state constitutional claims in twenty years. Each time, they were ones where the state courts had already resolved it. This is not something that my day job directly implicates or directly supports. What happened was I went to Ohio State Law School. No one taught State Con Law at that time there. Back in the late ‘80s, almost no one taught State Con Law. Maybe 10 to 15 law schools out of 200 in the country. That was not unusual. What was unusual was my experience as Ohio Solicitor General, when I started defending attacks on state laws, several of them under the Ohio Constitution.

As I tell my State Con Law students, I could teach a semester-long class, based exclusively on cases I lost at the Ohio Supreme Court under the Ohio Constitution. This had this jarring head-snapping effect on me. I found myself going, “This is strange. Why is no one talking about this? Why is no one reading it?” If you think of the single-story we get about how long this country, the single-story is, US Constitution where our rights are, the US Supreme Court is the great guardian of these rights. Brown versus Board of Education is the way of illustrating how that counter-majoritarian approach works with the heroes being the US Supreme Court and the Federal courts.

I found myself going, “Each of these cases I was losing in the Ohio Supreme Court under the Ohio Constitution, most of them were cases where the US Supreme Court had already rejected the same claim under the Federal Constitution. If you think of liberty and property protection as heroic, why aren’t we talking about state courts?” The longer I’ve been a federal judge, the more I’ve realized, “We federal judges aren’t perfect, me in particular.”

If you look at the broad sweep of constitutional history, US Supreme Courts made some glaring errors. Buck versus Bell is one of the eugenics movement. That’s one of the chapters in the book. Obviously, Dred Scott, Plessy and Korematsu. To me, we have this danger of a single story where we think of one constitution, one court. The better way to think of it is as 51 constitutions, 51 courts, all having good days, bad days. If we rely on all 51, we hedge our bets and we improve the odds that more rule of law justice has done.

The second thing that occurred to me, which this does grow out of my experience as a federal judge, right or wrong about this, I’ve come to believe that we, Americans, are putting too much faith in the federal courts as the guardians of liberty and property. It’s fun for a federal judge in one sense, because that means we have more power, but the downside is the American people, fools so they may be in the short-term, they’re not fools in the long-term. They have come to appreciate how significant that power is. What I’m getting worried about is by relying too much on federal courts and the federal constitution, we’re running the risk of politicizing this crown jewel of American Government.

A big theme of 51 Imperfect Solutions is, let’s try to use the Brandeis insight of states as laboratories of democracy. In addition to going to state legislatures for experimentation and dealing with new problems, why not use our 50 state courts in our 50 constitutions, which have all these rights in them? Why not use those state courts as laboratories of constitutional experimentation? At least when it comes to the hardest debates in Con Law, let’s say, substantive due process, what searches are reasonable? When is it equal protection? What speech is free? The ones that we litigate a lot. Why are we litigating over one constitution and one court and why not use all 51? Most people think Brandeis was right about legislation. What I’m trying to say is it’s true for judicial experimentation. Let’s have a free market of ideas and experiment with one state court after another.

TALP 41 | State Constitutional Law

State Constitutional Law: We are putting too much faith in the federal courts as the guardians of liberty and property.

 

One of the things that I thought was interesting in the book that I think maybe I knew intuitively, but don’t think about is the reliance on federal rights as a means to protect rights as a more phenomenon since we have got into the incorporation process. That state constitutional rights even predate our federal constitution.

This is important. It’s such a great example of a huge education gap in this country. There was a poll on this, at least that I’m familiar with, 52% of Americans didn’t even know their state had its own constitution. What’s amusing about that is at the same time, we, as Americans, embraced judicially enforceable rights more than any country in American history. When we say that, we’re referring to federal constitutional rights, and guess where every single one of those federal constitutional rights came from? This is not Philadelphia 1787. This is not James Madison’s idea in 1791.

These are from the first state constitution as written roughly from 1776, before 1787. The Convention in 1787 in Philadelphia was cut and paste, “Let’s borrow from Massachusetts here for Virginia there,” all to the good. In my view, the main innovation in the US Constitution was federalism. It’s the thing we’ve forgotten. I do find it funny that on the one hand we embraced judicially enforceable rights so much but had forgotten where these exact rights came from. That seems unfortunate. Part of this is a big education project, which I thank you for supporting with your show.

We appreciate it because I know a number of cases I think about, “Let’s make sure that for whatever reason, we put in our federal constitutional argument, whether we’re in state or federal court.” You don’t think about concurrently bringing the state constitutional argument at the same time, even though, to your point, it may ultimately prove to be a more protective right or at least coextensive with the federal right. It may be, but if you convince your State Appellate Court or State Supreme Court, it could go well beyond what Federal courts would provide necessarily.

I’m assuming a good number of your readers are coming from the Republic of Texas. Of all the states in the country, back to calling it a state, you would think Texas would be the one that would take the most pride in its constitution. It’s almost amusing to think that Texans, of all people, would not take pride in their local constitution. The possibility that the constitution might have a different meaning than the Federal Constitution or in some areas be more rights-protective. Judge Willett, once on the Texas Supreme Court, now on the Fifth Circuit, he had a great decision in a case called Patel. It’s about eyebrow threading and a right to earn a living. It was a challenge to a Texas regulation. It may have required 1,700 hours of education before you get this eyebrow threading license.

I don’t know if the court was unanimous, but it was a lopsided decision invalidating this regulation and preventing people from earning a living. Judge Willett has a fun concurrence that has the immortal line, “Don’t thread on me.” It’s a fun opinion, but one of the things you realize as you’re enjoying reading it is the room for different approaches to due process, liberty and a right to earn a living protection. If you ask me, it’s a Texas opinion, both the majority and the Willett concurrence. It shows a little bit of skepticism of overregulation, a little bit about freedom of earning your way and not over-regulating that or limiting it. A big part of doing all this writing is trying to remind everyone to argue the state claim.

It might have a rich history that’s Texas-based. Another way to put this point is, the US Supreme Court can do what it wishes, but it should not. We can all agree to customize interpretations of the Federal Constitution to account for one demographic group, one region of the country or one perspective. The US Supreme Court can’t write a case about Liberty and property that is customized to the Texas history or the Texas experience. That’s wrong. That’s unfair to the other 49 states. By contrast, the Texas Supreme Court should customize its interpretations of the Texas Constitution to account for Texas history, Texas culture and many epics of Texas history. You have the Texas Supreme Court. It’s got a federal claim in front of it and a state claim in front of it. When it’s got the federal claim, it can’t customize to Texas experiences. It’s a national right. When it has a state claim, it’s liberated and, usually, that’s something lawyers like.

Those of us who litigate in our State Appellate Courts ought to like it because that’s a venue in which we’re much at home. As a practical matter, the Supreme Court where we do a lot of our practice is the court of last resort on a state constitutional issue.

No appeal to the US Supreme Court on that.

To keep our Texas connection going, one of the early case studies that you put in your book was about the Rodriguez case and school finance in Texas. I thought that was an interesting example because it does drive your point home about how you may find a state court far more protective of a right than a federal court would be.

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Everyone does know this story on the show. Rodriguez came from San Antonio. It’s about poor property areas and higher wealth property areas within the San Antonio city and suburbs. Famously, in a close decision by a 5 or 4 vote, the court refused to grant relief under the Federal Equal Protection Clause. Eventually, in the Edgewood cases, the Texas Supreme Court, about six years later, granted that same relief under the Texas Constitution. Who are the heroes of that story when it comes to equality of educational opportunity?

Going back to a practice point, this is a pure practice tip. Let’s say you’ve got a case and you’re either on the defense side or you’re bringing the claim. If you’re bringing the claim, you add the federal and state constitution. If you’re on the other side, maybe you find a way to bring the Texas Constitution into it if you can. That won’t always be true, but sometimes it is. Why would preserving a claim about the Texas constitution be valuable to you? Here’s my reason. Am I right in remembering that the Texas Supreme Court, a lot of its cases are discretionary review cases? I lost a lot of cases. One of the hard things about getting a case into a discretionary high court is how do you show what’s important? You think it’s important, but that’s because you lost and your client is angry. You don’t have a lot of credibility when you tell the higher court how important this case is.

They’re like, “Jeff, your client is unhappy.” They’re probably unhappy with you. You’re trying to save face and turn this defeat into a victory. Your credibility level is not high in convincing the high court to spend its limited resources on your case. What is an attractive way to get the court interested? The separate question presented, “Do the Texas due process clause, free speech clause and free exercise clause have a different meaning from its federal counterpart?” That is a shiny object when it comes to any high court in this country if, in your argument, you show that disclaim is rooted in different language in the Texas Constitution, in interesting history.

I have spoken to almost every set of state court judges in the country over the last many years. I’ve yet to come across any that wouldn’t be super intrigued by that point, which leads to one related point. People are always saying, “I’ll teach you if you’ve read all these state cases about state constitutions.” What’s the common denominator that links the cases where the state courts charted their own path and granted relief, particularly where the federal courts did not grant relief? It’s not textualism versus non-textualism, originalism versus living constitutionalism. It’s not liberal conservatives. It’s not republican or democratic-appointed. It’s not elected or non-elected. The key common denominator is local pride.

I’m going to bet from the beginning, all high court judges in the country now have always shown considerable pride in their own constitution and the ways in which that constitution is rooted in that state’s experience. Think about it, particularly if you’re an elected judge, but even if you’re not, what state high court judge would not be interested in Texas history or Ohio history and where these guarantees came from?

It does require some work sometimes for the advocate of, “We described a situation where you’re lost.” Maybe you owe your clients some work, maybe even pro bono at this point. You did lose and find that local story. I can’t say this with more conviction. State court judges love their states and their state constitution. They’re looking for someone to show them that there’s a story to tell that no one’s told yet or maybe it’s not that complicated story. It needs to be told in this case.

You hit that point a little bit when you mentioned the Republic of Texas. Our state judiciary has a lot of pride. We have a great amount of interest and pride in our state constitution that we’ve talked about on the show before. It is rather surprising how undeveloped our state constitutional law is. We can go off track talking about how disorganized our state constitution is and it is piecemeal, but it’s a great point. You talk about an opportunity for advocacy. That’s an excellent, practical tip to bring forward on the show, Judge, thanks for bringing that up.

One thing I’m often asked, I mentioned the election point, which generates a lot of reactions in people in terms of the judging you get from an elected judiciary. I started out as someone quite skeptical of electing judges. Why use a majoritarian process for a non-majoritarian job, but then I went through the federal election process and I found it to be the highest political, not very attractive. I found myself thinking, “We’re picking from a bunch of bad options here.” Be careful before you get on a high horse about one being better than the other. The good advocate takes the world as it is in front of them, and instead of complaining about it, finds a way to have it work for them. Let’s think about why elected judges are good on this topic.

The way to illustrate the point is a reason that state courts sometimes don’t have a very developed State Con Law. They’ve had this temptation and presumption that whatever the Federal Constitution says presumptively is what the state constitution should mean because it’s an education issue that everyone’s studying Federal Con Law. That’s the language of Con Law that they know. If it’s the language, you know, it’s the language you resort to, unless the advocate gives you a good explanation. Answer one is give them the explanation and they’ll be happy to accept it. Answer number two is to think for a second how easy this should be. Think if I ran for the Texas General Assembly, the Texas Legislature and got up on a stem speech and said, “Whenever I have a difficult problem of Texas policy, I always ask myself, what would Congress do?”

TALP 41 | State Constitutional Law

State Constitutional Law: A reason that state courts sometimes don’t have a very developed state constitutional law is because of the presumption that whatever the federal constitution says is what the state constitution should mean.

 

You can’t get away with that. That is not a plausible answer. I would say that’s an answer that would destroy any political career at any point in Texas history. The same is true for the other 49 states. Think about what that says about elected judges. They can’t possibly think that the people of Texas think about it any differently. What state doesn’t have local pride over its capacity to fix local problems? What group of people does think the people in Washington have better superior answers? I certainly wouldn’t have thought Texas was the place to find that attitude. That’s what you have to convince the state court judge is going on when the other side says, “Follow the federal model.” The federal model is helping the other side in that case. Otherwise, they wouldn’t be pushing the point, but it’s a funny thing for an elected person to accept. It doesn’t seem that hard to me to push back on.

There are some downsides having read through your book now that you don’t necessarily think about at first blush of focusing on federal rights. You use the phrase federalism discount. I love that term because that sums up what some of the big problems are.

One thing about the US Supreme Court, we tend to think of it as a liberal-conservative. We have all these dichotomies. Even in the Warren Court which was an innovative court. It developed a lot of new Federal Con Law. You still realize you’re setting as a high court for a whole country. It’s a diverse country. I would say today’s court is maybe even more sensitive to that point. In other words, they’re much more likely to appreciate that that’s a complicated issue and it’s possible the people of Texas might think about it differently from the people of Massachusetts and maybe our federalist systems should account for that and allow those different approaches. That is the federalism discount. That’s allowing local innovation over an issue about search and seizure, property, takings and free exercise.

Think about the free exercise of religion issues. That’s a hot topic throughout the country. Think of states like Utah, Rhode Island, Pennsylvania and Maryland, they were founded by different religions, but religious dissenters. A group that was unhappy as a minority faith in another colony state. One reason to found this new state was to either be in the majority or at least not have their faith discriminated against. Surely, the state high courts in those four states can account for that history. That’s the federalist discount. They’re allowed to let these four states chart a more faith protective environment because they have a lesson in history where they knew what it was like to be a dissenting voice on matters of faith. I think the federalism discount is a nice way to think about it.

What are the tips or considerations that you would give attorneys that maybe they need to start thinking about when they’re going to address these issues in court? You’ve already given some, but how to frame that analysis and ways that they can present this better?

I’ve been thinking about it a lot. One great thing about talking to a lot of people about 51 Imperfect Solutions was not so much the chance to tell them than I thought, but to learn from many different people around the country and hear their perspectives and other ideas. We have another book coming out on this which is going to be about structure, that’s going to be about rights too, but mainly structure. One thing that occurred to me is a great way to think of clever arguments under state constitutions is oddly enough to remember your class on Federal Con Law. What is a class about Federal Con Law? I have a slight bias on this as a federal judge.

Let me tell you what I think it amounts to. The professor assigns an opinion by Judge Sutton. They start out class by warming up and student A presents the facts when it comes to Judge Sutton’s opinion. It gets a little more complicated with student B who’s asked about what the holding of the case is. Sometimes we know there’s room for debate about that, but then student C through the rest of the alphabet, we start getting into, “What do you think of Judge Sutton’s reasoning?” You probably get a sense of my sensitivity on the topic. I’m never there for these discussions.

I’m generalizing a little bit with a twinkle in my eye that quite often the point of a class in Federal Con Law is to teach all that has gone wrong with federal decisions in con law, by people like Judge Sutton. Partly a critical thinking exercise going on, but it’s hard to take away from a Federal Con Law class anything other than the message that there’s an awful lot of tricky issues, if not serious problems, with Federal Con Law.

My advice to the lawyer trying to make a State Con Law argument is to go back and remember every one of these criticisms of Federal Con Law. That’s not hard to find. The law reviews are filled with criticisms of Federal Con Law. There must be hundreds of books about all the problems with Federal Con Law, whether in creating more rights or that we should create fewer rights. It doesn’t matter which way it goes. The point is there’s no shortage of criticism about things that have not worked out well in Federal Con Law. Think about the tiers of review. One scholar said, “We now have seven tiers of review. You have to love the biblical connotation. On day one, God gave us a rational basis. On day two, God gave us strict scrutiny. On day three, God gave us intermediate scrutiny, all the way to day seven.”

Once you get outside of that, you have to ask yourself, “If we’ve got seven tiers of the review, we seem to be a case away from A, maybe tiers of review haven’t worked out as well as you might like.” It’s rare of a Federal Con Law professor teaching in class equal protection who doesn’t articulate some of the weaknesses of tiers of review. If tiers of review do not help your client in a Texas case in challenging a Texas law or regulation, you have a lot more ammunition than you realize when it comes to explaining why the Texas Constitutions Equal Protection Guarantees might try a different path.

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In the book, the Buck versus Bell story talks about the nineteenth-century approach to this issue using class legislation, but that was the phrase they used. I’ve gone back and looked at that. There are some good insights. I don’t think it fixes every problem, but in the federal Buck versus Bell case, the court was beginning to use tiers serve review. The rational basis was the first one. The state courts who got those cases right, from my perspective, used class legislation. It illustrates it might not be a terrible doctrine and at least it’s one you shouldn’t ignore.

As you were mentioning that, it occurred to me that it is a lot easier from a political standpoint to have a political fix of an issue in a state. If the state legislature feels like they got it wrong, then to get Congress to fix an issue that may or may not come out in favor of 50 different states, that share is easier to get a local redress on the legislation side of something, too.

Smaller states have a little more homogenous sets of views. They’re in the same state. My real thing about what is compromised is so much easier at the local level. It is so much easier to get two sides fighting over an issue if they’re from the same state because, if their compromise works out, you develop trust for the next time something comes about. How do you develop compromise in the Texas legislature if all the compromising or power in the national legislature has been taken out from under you? It doesn’t mean you don’t nationalize some things, but the Brandeis point is don’t nationalize prematurely, because you might pick a bad choice and it can hurt an awful lot of people when you experiment on the whole country at once.

As Texas’ constitution proves, it’s easier to amend a state constitution, generally speaking, than it is to get the Federal Constitution to do anything. It’s maybe too easy in some states like Texas.

The second book I have makes the point that the federal one is probably too hard and the states are too easy. It’s my view. The sin of easy amendability is you have to ask yourself how much of a sin is that. It is allowing the people to respond to something they don’t like and they can change it because it’s 51%. The problem with the three-quarters requirement at the federal level is it’s impossible to amend the constitution to deal with a controversial issue. That’s probably not been healthy.

On the subject of systemic changes, there are a lot of things advocates can do, but your book also talks about things that courts, state bars and all that can bring these arguments to the forefront and make them easier to do. Could you address a few of those because I thought that those were some insightful things to think about, too, on the other side of this?

One state that has done a good job on state constitutional law is Oregon. Some judges and practitioners have felt like a 500-page book that they give out to people and become members of the bar that lay out the different parts of the Oregon Constitution that had been given independent meaning. It’s an educational resource is what the point is. It’s a local pride point, but the real one is that it’s a resource. I like that idea. That seems useful to me. Another one that seems useful to me as a local rule, whether Texas Supreme Court or local court, is to have in the rules that if you choose to bring claims under this Texas and US Constitution, you’ve got to brief them in separate headings. This helps break free from this temptation to let the Federal Constitutional doctrine dominate the local conversation, which is what has been a big problem in state con laws.

The other thing I would recommend is that they say, “If you’re going to bring a dual claim case, always brief the state claim first.” That takes you away from the gravitational pull of the federal doctrine and forces you to look at the language of the Texas Constitution, history and cases. The other thing about putting those in the rules, by seeing them, is educational. The lawyer is like, “I hadn’t thought about that.”

I always tell people, “Read article one of your constitution. Article one, on almost every state constitution, is where the rights are. Declaration of rights, bill of rights.” That’s true in Texas. It’s much longer than the bill of rights in every case, the rights are often much more specifically articulated. They are sometimes general, but much less often. When you see it, you suddenly go, “This is a different set of guarantees.” It often can be idea-generating and quite helpful.

TALP 41 | State Constitutional Law

State Constitutional Law: Any lawyer trying to make a state constitutional law argument should remember the criticism against federal common law.

 

Texas’ article one has a long list.

That’s an interesting point about a rule change requiring the state constitutional issue to be addressed first. I don’t know how widespread that idea might become, but it does seem like a great practical tip for an advocate to take away from this conversation which is, “If you don’t want to get your state constitutional argument to get lost or sucked into the gravitational pull of the federal issue, then give it its own treatment. Make it Roman numeral one in your argument instead of burying it later under the federal constitutional argument.” I like the thinking behind that. That’s one useful way of framing this issue from an advocacy perspective.

It’s quite consistent with a bunch of other canons that we all accept quite readily. We always make a statutory before a constitutional argument because the statutory argument is less consequential than the constitutional one. Why wouldn’t we use the constitution that’s less consequential than the national one. That makes sense to me. If you had a Texas statutory argument and a federal statutory argument, surely you’d start with the Texas statutory argument if it’s potentially case dispositive, because it’s asking for the smaller ruling. The normal thing is to do less rather than more. This is less rather than more point. It’s true whether you’re in state or federal court. It’s funny in state court to think you start with the federal constitution. Why would you start with the constitutional and another sovereign when you’re in a state court? Why not start with the state constitution?

I can almost picture in my mind a Venn diagram or maybe not even a Venn, but concentric circles.

All those work, decision tree. The usual decision tree of organizing arguments is you start with the smaller source of authority and you work out. That seems to be true for statutes, constitutions and local ordinances so why not stick with that?

I also liked the idea when you mentioned teaching state constitutional law in law school. I don’t believe that was an option when I was in law school. If it was, I missed out on that, but that does seem like something that’s probably a little bit underutilized in legal education because it is wrapped up in federal constitutional law.

Consistent with that belief with COVID and while we are looking for silver linings, one is that I’m able to teach State Con Law in about 5 or 6 law schools. I feel like Johnny Appleseed dropping apple seeds everywhere on this little topic of ours. It’s easier to have a Zoom class. You don’t have to go anywhere. Most law schools aren’t based in Columbus, Ohio. That’s good for me.

Our show developed right at the start of COVID. We’ve managed to now find many guests who wouldn’t have done it on Zoom years ago, but now everybody knows how to Zoom. It is great to be able to bring people together. We’re getting towards the end of the time, but we always like to leave our guests some room at the end to give some tips or a war story or something. If you have more general tips for advocacy or a good war story you’d like to share, we’d love to hear that.

I’ll give one more story which now happens to be a tip. The group reading this not needing my help and knowing that it’s important for your clients to strategize who the final decision maker is. You’ve got a case, you’ve got to go to court. Let’s say for the sake of argument, it’s a constitutional case. You’ve got to think, “Do I want this ending at the Texas Supreme Court or the US Supreme Court?” That’s good strategic thinking. That’s what you’re supposed to do. There’s nothing wrong with it. You size up where the two courts are and you ask yourself, where would you rather be?

When I was doing the voucher’s case in Ohio, to their credit, the challengers to the Ohio Voucher Program relied a lot on State Con Law. That was wise because, at that time, the Ohio Supreme Court was probably a better place for a challenge to a voucher’s law than the US Supreme Court was. I was very nervous about that because I thought the Ohio Supreme Court would rule the state establishment clause, not adjust the federal establishment clause. As Todd pointed out, that means I couldn’t appeal to the US Supreme Court.

TALP 41 | State Constitutional Law

State Constitutional Law: Sometimes a state constitutional guarantee will actually violate a federal constitutional guarantee.

 

Sometimes though, State Constitution and Federal Constitutions can interact. Sometimes a State Constitutional guarantee will violate a Federal Constitutional guarantee. What I did in the voucher’s case was I raised a federal free exercise defense. I said, “If you construe the Ohio establishment clause to prohibit vouchers from being used at faith-based schools, you’re discriminating against people based on faith, in violation of the federal free exercise clause. That meant no matter what they did on the state establishment clause, it would have a federal component to it.” I didn’t end up having to use that because I lost on the ground of it being a single subject problem.

We went back to the legislature and they had to repass it in a single bill. The worst story and the point there is we’re seeing this in the election litigation. Even state statutory rulings, but quite often state constitutional rulings, can implicate another federal guarantee. In the election litigation, the question raised is, “Does the Federal Constitution’s Article 1 and 2 provision that the state legislatures will decide election laws, does that limit in some way state court decisions about election law?” It’s tricky and there’s no definitive answer. A practice tip point is sometimes the two sets of constitutions interact and you don’t want to lose sight of that either.

We enjoyed having you on the show. You’ve given us a lot to think about in terms of how to go about state constitutional issues. There’s an abundant opportunity to bring those issues to the forefront and in cases here in Texas. Hopefully, we’ll encourage people to give that a closer look. I also want to thank you for adding 2 or 3 books to my reading list to what you’ve been talking about because these are fascinating subjects. I liked the fact that the cover art of 51 Imperfect Solutions features Texas at the dead center of the graphics. Your mind is in the right place.

It’s my pleasure. I enjoyed talking to you. Good luck with the show and I hope our paths cross again.

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