Growing chorus for state constitutions should be taught in law schools

Have law schools been neglecting state constitutional law? Berkeley Law Dean Erwin Chemerinsky raised that provocative idea at a recent conference on the California Supreme Court.

"I think it's important that law schools do much more to teach their students about state constitutional law," Chemerinsky said at the SCOCA conference on Nov. 8. "Every law school requires students to take a course in United States constitutional law. Many law schools don't even have a course on state constitutional law."

Some prominent judges -- including the late U.S. Supreme Court Justice William J. Brennan Jr. --and law professors have tried for decades to draw attention to the issue. The message may finally be getting through.

"There is a rising tide of state constitutional law courses in law schools," University of Wisconsin Law School professor Miriam Seifter, the faculty co-director of the State Democracy Research Initiative, wrote in an email. "Student interest seems to be increasing as well. State constitutions have always been important, but we are at a moment where more people are thinking about them."

"I think this is definitely going to be a growth area in the law school curriculum," Stanford Law School professor Jane S. Schacter wrote in an email. "Justice Brennan wrote a landmark article on this in the 1970s in the Harvard Law Review calling for more active state constitutional jurisprudence and it remains one of the most cited articles ever. But I don't think it led to that many law school classes."

She also pointed to 6th U.S. District Court of Appeals Judge Jeffrey S. Sutton's 2008 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. In the book and subsequent interviews, Sutton said Ohio State University's Moritz College of Law did not offer state constitutional law classes when he attended in the late 1980s. He wrote that he faced a "baptism by fire" in state constitutional law when he became solicitor general of Ohio in 1995, despite an impressive resume that included a U.S. Supreme Court clerkship.

Schacter teaches State Constitutional Law (7108), a course the Stanford Law School catalog calls "a neglected body of law" that is becoming more important "as the U.S. Supreme Court makes significant changes to federal constitutional law." Berkeley, Harvard Law School, the USC Gould School of Law and the University of Virginia School of Law are among schools that now offer classes on state constitutional law.

Ellie Margolis, a professor at Temple University Beasley School of Law, said the wide availability of these courses is "a relatively recent development." She pointed to the work of Sutton and influential writing by Robert F. Williams, the director of the Center for State Constitutional Studies at Rutgers. Margolis added that it is difficult to quantify how many law schools now offer courses, but that it was possible the trend is still mainly limited to elite institutions.

As to why many law schools have a blind spot for state constitutions, Margolis pointed to several possible factors. These go all the way back to the appointment of Christopher C. Langdell as the first dean of Harvard Law School in 1870. Langdell created the mold followed by many law schools to this day, including a core focus on contracts, property, torts, criminal caw, civil procedure and the U.S. Constitution.

"It really set the tone for how law schools across the country arranged their curriculum," Margolis said. "A lot of it is just path dependence."

Another factor is probably how law school professors are recruited, Margolis added. Many come from a few elite law schools with a national rather than regional student and alumni base. Professors also often clerked in federal appellate courts or the U.S. Supreme Court.

In his talk at the conference hosted by the California Constitution Center and UC Law San Francisco, Chemerinsky said developments at the federal level have given a new urgency to understanding state constitutions.

"The reality is that the landscape for the law and the relationship between the federal government and the states changed dramatically on Tuesday," he said.

He was referring to the reelection of President Donald Trump three days earlier. But that relationship also changed dramatically in 2016 and 2020. The last time control of the White House flipped in three consecutive elections was the period between 1884 and 1892.

California sued the first Trump administration 123 times, Chemerinsky said, a number that doesn't include the many cases the administration brought against the state. The sides are gearing up for more clashes on areas ranging from environmental policy to gun rights. Red states led by Texas have had similar clashes with Democratic administrations.

But state courts and state constitutions also had a growing role well before the Trump era, he said. Chemerinsky pointed to same-sex marriage, which played out in a series of cases over state constitutional law in California, Iowa, Massachusetts and New York before ending up before the U.S. Supreme Court.

States are increasingly not just at odds with the federal government but with each other. While the U.S. Constitution is notoriously difficult to amend, voters in about 40 states considered changes to their state constitutions on election day. The results often went in opposite directions. Several states added protections for abortion, but Nebraska voters enshrined a ban on abortions after the 12th week of pregnancy into their constitution.

"State constitutions tend to be more responsive to politics," Margolis said. "They tend to be easier to amend. Especially in states where judges are elected, state supreme court decisions tend to be more sensitive to the political winds in a particular state. That does mean potentially more divergence."

Many past courses have tended to focus on the constitution of the state where a law school is located. The new trend appears to focus more on the interplay between the federal constitution and the various states.

"Courses on a single state's constitution and on 50 constitutions as a group can both be extremely valuable," Seifter wrote. "The state constitutional law casebook I am co-authoring (with Jessica Bulman-Pozen of Columbia Law School) takes the 50-state perspective, because there are so many shared principles and provisions across the states."

She added, "Law students should be familiar with all of these alternative pathways -- not just with the U.S. Constitution and the Supreme Court."