BOOK REVIEW: Robert Williams’s The Law of American State Constitutions

Robert F. Williams, The Law of American State Constitutions (Oxford University Press 2009), 456 pp.

For more than a quarter century, Rutgers Law School’s Professor Robert F. Williams has been the reigning authority on the law of American state constitutions. His new book shows why. Williams’s book is a sweeping analysis of a field that confuses many, astounds some, and now plays a more direct role in our political life than virtually any other body of law. In this short review, I argue that Williams’s book will repay readers of many different stripes and I suggest that it solidifies Williams’s place atop this field that he has so dominated for going-on thirty years.

As Hans Linde once noted, “[m]ost state constitutions are dusty stuff—too much detail, too much diversity, too much debris of old tempests in local teapots, too much preoccupation with offices, their composition and administration, and forever with money, money, money. In short, no grand vision, no overarching theory, nothing to tempt a scholar aspiring to national recognition.” Many of these so-called theorists forget just how central state constitutions are to the domains over which they generalize. How many recall that the vast majority of Gordon Wood’s classic, The Creation of the American Republic, was a study of state constitution-making? How many recall that much of what informed the founders of our federal Constitution came from a decade of experimentation with state constitutions?

Any discussion today of our “judicial federalism”—or of our ‘states as states’—must at least begin with the role of state constitutions in protecting “fundamental” rights, be it rights of speech, equality, privacy, or of the accused. Notable contributions to this growing field of federalism studies—like, for example, Robert Schapiro’s superb book Polyphonic Federalism—now showcase and analyze “intersystemic” adjudications like never before. And many of these cases have literally defined their times, reaching results which the U.S. Supreme Court had previously ruled were unavailable under the federal Constitution: New Jersey’s Mount Laurel litigation (ruling snob zoning unconstitutional), California’s Pruneyard Shopping Ctr. v. Robins (protecting a right to speak while on another’s property), New York’s Tucker v. Toia (need-based public assistance protected in the state constitution ruled a legally enforceable duty of the state’s), Texas’s Edgewood Indep. School Dist. v. Kirby (enforcing the right to an effective or “efficient” education), or Massachusetts’s Goodridge v. Dept. of Public Health (recognizing a right to marry one’s partner of the same sex).

Williams has long explored this intersystemic nexus from a methodological standpoint, asking why there should be any reluctance on a state court’s part to “find” or “uphold” a right that a federal court has said is not protected by the federal Constitution. From a purely positivistic perspective, there probably shouldn’t be much reluctance. Most state constitutions bear little resemblance to the federal, whether because they are worded differently, were adopted at a very different time, or because they’re the product of a single state and not a union of states. From an epistemic perspective, as Professor Vermeule and others have argued, ‘lock-stepping’ a state constitution to the federal would seem to be an even worse idea—given all the many pathologies of our federal judicial system (five votes from SCOTUS isn’t “many minds”).

Of course, “independent” interpretive methods are a one-way ratchet under the Supremacy Clause: states that don’t protect their citizens’ rights which are protected under the federal Constitution will simply leave those plaintiffs to their federal claims. And therein lay the essentially partisan feel of so much state constitutional law boosterism. For example, many of these boosters change tunes when confronted with state constitutions protecting property rights more assiduously than does the federal Constitution (as interpreted by SCOTUS). I don’t consider Williams a ‘booster,’ and, while I’ll add that he has been admirably consistent over the years in his approach to “divergent” interpretation, one field I thought ought to have played a more prominent role in the core chapters of the book was takings. Takings law has become a vibrant, fast-changing field over the last two decades—the same interval in which SCOTUS was basically burying it—thanks in part to state constitutional law. Oregon’s measures 37 and 49 were notable, but hardly unique.

But it is in the book’s distribution of powers chapters that Williams’s mastery of state constitutions’ diversity becomes such an asset. Several states, for example, take the “nondelegation doctrine” very seriously—a separation of powers problem that I, for one, find both fascinating and troublesome when left to a ‘common law’ judiciary. Other states define the “judicial power” in their own way, define unique relationships of their legislature to constitutional amendments, or maintain specific instructions as to the force of precedent in their legal traditions. And as several of our states struggle perilously close to bankruptcy or other forms of legal/political oblivion, Williams’s book may be a uniquely powerful tool for harnessing possibilities and potentials, especially if constitutional conventions are called. (It has an extensive index!)

We seem to be in an era of almost medieval foment sustained by opposing centripetal and centrifugal forces—the forces of an expanding cosmopolis of globally defined risks and value priorities and of a resurgent localism emphasizing membership, uniformity of interest, and exclusion. State constitutions occupy an unstable middle ground between the two, mediating them in an expanding array of contexts. The Law of American State Constitutions explores subnational statehood as an American legal concept like no other resource with which I’m familiar. And as this struggle continues both here and abroad, this book will be an asset for years to come.

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Jamison E. Colburn is a professor of law at Pennsylvania State University School of Law.

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