- Thank you for coming, welcome.
This is our 23rd Annual Brennan Lecture
in the State Courts and social justice.
This is a program that is sponsored
by the Institute of Judicial
Administration, the IJA.
Which I've been privileged
to be a co-director of
since 1991 and Troy McKenzie is here,
another co-director of ours.
I don't know if Oscar is here tonight.
We, IJA is the principal
arm to the judiciary,
not the only arm but the principal arm
to the judiciary at the NYC School of Law.
The organization's been around since 1947,
it was a creation of Arthur Vanderbilt
who was the then legendary
Dean of NYU School of Law
and I have to say then legendary,
the building is named after him.
He had all, almost all of the justices
of the state Supreme, Chief Justices
of the State Supreme Courts here
to celebrate the naming of the
building during his lifetime.
I mean that was.
(audience laughs)
And that was his achievement.
The reason I say then legendary Dean,
because we have legendary Deans since then
and two of them are here in the audience.
Ricky Rivas and my current
boss, Trevor Morrison.
So I need to be very
careful that I spread the,
spread the credit.
Very proud of IGA because we have,
we have developed programs that attract
state and federal judges
from all over the country.
And we are regarded by
them as non-partisan
and non-ideological.
So we have been able to attract people
who are Democrats and Republicans.
Who are originalists and
modern-living Constitutionalists
and so, we're just very proud of the fact
that there's such a home here at NYU
for that kind of activity.
We have three principal activities.
One is the Appellate Judges program
which we conduct every summer.
Neil Gorsuch for example
had been in our program.
As did Sonia Sotomayor.
So this is an organization that unifies
those two tendencies in American law.
Now we're regarded as the best program
for new Appellate Judges in the country
which is a status that
we are very proud of.
It's due in part to the fact
we're the only such program.
(audience laughs)
Kidding aside, we also, we
also run a annual program
on employment law for federal judges.
We're now in our 20th year.
We've completed our 20th year.
We attract 40 over 40 federal trial judges
and some appellate judges to that program.
And Judge Ferman who is on
the faculty of the program,
I'm sure there are other people here
that have been involved.
FJC, the Federal Judicial Center
has gone through the
federal judiciary twice
to give everyone an equal chance
to be part of that program.
A third centerpiece program
is the Brennan Lecture.
Which I'm very proud
because we're honoring
state judges, state courts.
It's sort of a very funny thing,
if a Martian were to come here
and go to a major law school,
they would get the impression
that most of the law
is made in federal courts.
They would also get the impression
that the primary
guarantors of our liberties
are federal courts.
Now they are important,
they are primary guarantors
but we know that until the 1880s
there were not general federal courts
and so that the design was
to rely on the state courts
and we still rely on the state courts
for most of the important areas of private
and public law in this country.
So we are, we are honoring not only
Justice Liu but we're also honoring
the state judiciary through
the Madison Lecture.
Through the, sorry, through
the Brennan Lecture.
That was a faux pas on my part.
Through the Brennan Lecture.
Actually I think Brennan was
a more consistent advocate
of the point of view that
many in this building share
than was Madison.
But we're also, the Madison
Lecture is a kind of forerunner
of what we do.
23 years and each year the
speaker produces an article
that's published by the NYU Law Review
and we're very pleased
that the NYU Law Review editors are here.
So that's all that I'm going to say.
Now just our, now to-be legendary Dean
of the NYU School of Law Trevor Morrison
who is a product of Colombia
and the Canadian legal education system.
(audience laughs)
Got a Canadian education.
(audience applauds)
- Well it's true, Colombia
is to the north of here,
it's not quite in Canada.
But it's true I was there before I knew
anything about the law too
which, which Sam and Troy
and others will tell you
continues to be true today.
But I am glad to welcome everybody here
to the 23rd Brennan Lecture.
I just wanna say a word of
thanks and ongoing thanks
to Sam and to Troy and to Oscar Chase
for their leadership of IJA
which is a tremendously
important part of this law school
and for the reasons that
Sam was just articulating,
I think we can justly be proud of the fact
that it's a very important part of
American public life, of
the law in this country
and of supporting the judiciary,
both state and federal,
though of course tonight
we're focusing on the state courts.
I suppose it might be
true, Sam might be right
that if a Martian were to land
and observe goings on in this law school,
that person, that Martian would think
that the most important things that happen
happen in federal court.
I tend to think it's more
likely they would conclude
that the most important
things happen in Law Reviews.
(audience laughs)
But either way, that would
very arguably be in error
and in fact the work of the state courts
is of course indispensable
to the administration
of justice in this country
and of course Justice Brennan for as much
as he was famous and justly so,
for his many years of dedicated service
and vision on the U.S. Supreme Court
is himself a fantastic exemplar,
maybe the leading exemplar of excellence
on the state court level as well.
We're of course very, very
proud of our own graduate
Judith Kaye who was the
first Brennan lecturer
and both Justice Brennan
and Judge Kaye themselves
talked at some length in writing
and in their lectures about themes
that I understand our guest today,
our honor speaker will be addressing.
Namely the role of state high courts
in elaborating Constitutional norms
through state Constitutions
and the extent of which those,
that norm elaboration ought to track,
what the federal courts say
about the U.S. Constitution
or ought to chart their own path.
An important issue, an
ongoing and enduring issue
ever since it was explored
by the likes of Brennan
and Kaye and today we get to add
the insights of Justice
Goodwin Liu to that tradition.
We're really grateful that
Justice Liu is here with us
among many friends and admirers
and it's my task then
to introduce the person
who will introduce him
and that's Meir Feder.
Meir's a partner at Jones Day
where he heads their issues
and appeals office in New York.
He's a renowned appellate advocate
before the Supreme Court
of the United States,
the Federal Courts of
Appeals and State High Courts
across the country.
Earlier in his career he served
in the U.S. Attorney's Office
in the Southern District of New York
and was a clerk to Justice Souter.
He is admired by many of us as a friend
and active member of IJA
and we're very grateful
that tonight he can
introduce Justice Liu, Meir.
(audience applauds)
- So first of all I
apologize for the sort of,
long windup in getting
to our featured speaker.
I feel like maybe Dean
Morrison should've passed me
a baton that he got from Sam and you know,
but without further ado I'll say
that it is a tremendous
honor for me this evening
to introduce Justice Goodwin Liu
of the California Supreme Court to deliver
the 23rd Annual Brennan Lecture.
In welcoming Justice
Liu we have the benefit
of hearing from someone who's not only
a distinguished jurist but
also an unusually accomplished
legal scholar.
Justice Liu is really
no other way to put it,
a classic American success story.
He is a child of immigrants from Taiwan,
a product of the public schools
of Sacramento, California.
He attended Stanford for college
where unlike the typical
pre-law liberal arts major
he got his degree in biology.
He went from there to do a
Rhodes Scholarship at Oxford
and at Oxford he earned a degree
in what I have to imagine
is the unusual combination
of philosophy and physiology.
It's, I don't think that's
offered as a double major
at most places.
Following Oxford, Justice Liu
helped to launch AmeriCorps,
the national service program.
He spent two years in D.C. and then
moved on to law school
at, the Yale Law School
where, from which he graduated in 1998.
After law school Justice Liu clerked for
Judge David Tatel on the D.C. Circuit
and Justice Ruth Bader Ginsburg
and finding the time in
between those clerkships
to spend a year as a special assistant
at the U.S. Department of Education.
He also, following the clerkships
he practiced at O'Melveny &
Myers as an appellate lawyer.
As a certainly a role close to my heart
and went quickly from
there to join the faculty
at the University of
California Berkeley Law School
which at the time I guess
was probably Bolt Hall.
It is now only informally Bolt Hall.
But still Cal Berekeley.
He quickly became a
prominent legal scholar,
particularly well-known
for his extensive writing
on Constitutional issues and education.
And he has continued to be
involved in education issues
throughout his career in,
I will skip ahead to 2011
when he was appointed
by Governor Brown to his current position
as an Associate Justice of
the California Supreme Court.
I should mention that
Justice Liu joined that court
when he was at the ripe old age of 40.
So he is still, always daunting
to come into contact with
people who have accomplished
so much so young but we
have that benefit tonight
and I should add that it
is particularly fitting
in more than one way for Justice Liu
to be delivering tonight,
a lecture addressing
the important role of state courts
in interpreting state
Constitutional provisions
that are similar to provisions
of the federal Constitution.
The more obvious way this is fitting
is that this year marks
the 40th anniversary
of Justice Brennan's classic
article on the subject,
State Constitutions and the
Protection of Individual Rights
and so there could be no better venue
than the Brennan Lecture for Justice Liu
to deliver this talk.
The other way in which this is fitting
is that Justice Liu himself I think
represents a renewed focus,
not only in the legal academy
but also in the real world
on the important role
that the state courts play in our system.
What I mean by this is
that when he was appointed,
by appointing a nationally prominent,
cutting-edge legal
scholar like Justice Liu,
Governor Brown went in a
new and what at the time,
was certainly an unusual direction
for a Supreme Court appointments
and it worked so well
that Governor Brown's
next two appointments
following Justice Liu
were a Stanford Law professor
and a former acting principal
deputy U.S. Solicitor General.
The California Supreme
Court itself has always
been an extraordinarily respected Court
but one can see that
Justice Liu has set a path
for what even for that court
or really for any court
would have to be regarded
as an extraordinary infusion
of legal talent.
And I think that that collection
of talent both reflects
and perhaps will drive
a renewed recognition
of the importance of state
courts in our system.
Perhaps even some day the NYU Law School
may reflect some of, some
focus on what happens
in state as well as federal courts
and aside from the
Brennan Lecture that is.
And so I think that makes it fitting
that we'll hear Justice Liu this evening
address the important role of those courts
in the 23rd Annual Brennan Lecture
on the topic of State Constitutions
and the Protection of Individual
Rights, A Reappraisal.
Justice Liu.
(audience applauds)
- Well, thank you Meir for
that tremendous introduction.
This is the first time that
I've ever had an introduction
that was preceded by an introduction
that was preceded by an introduction
and all I can take away from that
is either you all really like me
or you don't want me to talk very long.
(audience laughs)
I actually thought what you were gonna say
was that I'm an exemplar of federalism
because some of you know
that I was nominated
for the Federal Bench
before landing in this gig
and as I say, it made me a
deep believer in federalism.
(audience laughs)
It's a great honor to be here at NYU
to give the Brennan Lecture,
the 23rd Annual Brennan Lecture
on State Courts and Social Justice.
I wanna thank the Institute
of Judicial Administration,
Sam and Troy and Oscar
for the tremendous work
that you do for the judiciary.
My friend Trevor Morrison who I've known
for quite some years.
I'm grateful to all the
judges who are in attendance,
in particular the judges from
the New York Court of Appeals
and the Appellate Courts of New York
as well as the New Jersey Supreme Court
and Appellate Judges there.
My classmate Jesse Furman is here
from the Southern District,
doing a great job there.
Several ALI colleagues, American
Law Institute colleagues,
Ray Lohier is here from
the Second Circuit,
Margie Marshall, Ricky of course.
I'm gonna forget people, Carol
and Evan and many others.
It's such a wonderful
organization and in addition,
I'm so happy to see colleagues from NYU,
Columbia and Yale.
I have students here from
different walks of life,
including Yale, Bolt, former externs here.
So who knew I had so
many friends in New York.
This is really tremendous
and I wanna thank
many other friends who have come,
some from very long distances
to be with me today.
I also wanna acknowledge
the presence today
of professor Bob Williams
from Ruckers who,
those of you who have even dabbled
in this field must know of
his immense contributions
to the understanding of state courts
and state constitutions
and so it's a great honor
to have Bob here today.
So yes, the inspiration
for my lecture this evening
is the 40th Anniversary
of Justice Brennan's
1977 article in the Harvard Law Review,
State Constitutions and the
Protection of Individual Rights.
As of five years ago,
this article ranked ninth
among the most cited Law
Review articles of all time.
Among the top 10 most cited articles,
Justice Brennan's is
the winner for brevity.
At a slim 16 pages.
Beating out Oliver Wendell
Holmes' The Path of the Law
at 22 pages, think about
that for Law Reviews today.
So in his article, Justice
Brennan urged State Courts
to engage in independent interpretation
of the individual rights
guarantees in State Constitutions.
Especially in areas where
the U.S. Supreme Court had
in his view, unduly constricted
the scope of analogous rights
in the Federal Constitution.
In his words quote,
State Courts cannot rest
when they have afforded their
citizens the full protections
of the federal constitutions.
State constitutions too are a
font of individual liberties,
their protections often extending beyond
those required by the Supreme
Court's interpretation
of federal law.
The legal revolution which
has brought federal law
to the fore must not be allowed to inhibit
the independent protective
force of state law
for without it the full
realization of our liberties
cannot be guaranteed.
So the legal revolution of
which Justice Brennan spoke
consisted of Warren Court decisions
giving life to the equal protection
and due process clauses
of the 14th Amendment
as well as decisions
applying various provisions
of the Bill of Rights to states.
By 1977 however, President
Nixon had appointed
four new justices to the court
and Justice Brennan sensed
that change was afoot.
At the same time he observed,
state courts have in his words,
independently considered the merits
of constitutional arguments
and decline to follow
opinions of the United
States Supreme Court
they find unconvincing
even where the state
and federal constitutions are similarly
or identically phrased.
The essential point I am
making, Justice Brennan said
is not that the U.S. Supreme Court
is necessarily wrong in its interpretation
of the federal Constitution
or that ultimate
constitutional truths
invariably come prepackaged
in the dissents from
decisions of the Court.
It is simply that the
decisions of the Court are not
and should not be dispositive of questions
regarding rights guaranteed
by counterpart provisions
of state law.
Rather State Court judges
and also practitioners
do well to scrutinize
Constitutional decisions
by Federal Courts and only follow them
if they are logically persuasive
and well reasoned, okay.
So over the years, Justice
Brennan's article has spawned
an expansive literature
on judicial federalism.
New Jersey's Supreme Court
Justice Stuart Pollak
called this article the Magna Carta
of state constitutional law.
The late chief judge Judith Kaye,
delivering the first
Brennan Lecture right here
at NYU in 1995 said,
"I still remember the
excitement those stirring words
"in his article generated.
"Many of us had grown so federalized,
"so accustomed to the Supreme
Court of the United States
"as the fount of Constitutional wisdom
"that we barely remembered our state
"even had a constitution."
But this newfound exuberance
for judicial federalism
also drew criticism.
One commentator called Justice Brennan
a false prophet of federalism
whose real objective
was to encourage state court activism
in favor of liberal causes.
Others described state constitutionalism
as a strategy for quote, nosethumbing
at the U.S. Supreme Court and as quote,
a kind of forum-shopping for liberals.
Harvard Law Professor Paul
Bator expressed misgivings
about the extent to which Justice Brennan
seems to assume that
state constitutional law
is simply available to be manipulated
to negate Supreme Court decisions
which are deemed unsatisfactory.
So state constitutionalism critics argued
boils down to a kind of tactic for evading
federal precedents that
state courts don't like.
Well, as to Justice Brennan's
belief in federalism,
it's worth noting that in addition
to serving five years on the
New Jersey Supreme Court,
Justice Brennan was intimately involved
in the 1947 revision of
the New Jersey Constitution
which came to be viewed as
a model state constitution
for the nation.
But however devoted he was to federalism,
it is fair to say that what
his 1977 article lacked
and what judges and commentators
then struggle to articulate was a theory
of interpretation to guide state courts
in deciding when they should depart
from federal constitutional decisions
in construing analogous
provisions of state constitutions
and the premise of this quandary
is that state constitutional
law must go its own way,
not in order to achieve
a particular result
but because it is jurisprudentially
an independent body of law.
State courts accepting this premise
began to ask what is the methodology
of this jurisprudence,
what is the proper way to
interpret state constitutions
and how is such interpretation different
from interpretation of
the federal Constitution
and these have been the dominant questions
of judges and scholars in theorizing
the legitimacy of state constitutionalism.
What I wanna suggest this
evening is that these questions
while interesting are not the main fulcrum
on which the legitimacy of
state constitutionalism rests.
The legitimacy of state constitutionalism
does not primarily
depend on the development
of a distinctive
state-centered jurisprudence.
Many of our basic rights and liberties
are protected by similar language
in the federal and state constitutions.
State courts and federal courts can and do
have principled
disagreements on the meaning
of those rights and liberties
and when state courts depart
from federal precedent it may be because
a state's constitutional text or history
points to a different
result and state courts
should of course look first
to state-specific sources.
But when there is no
state-specific text or history
to guide the analysis,
it is no embarrassment
for a state court to disagree
with federal precedent
on the basis of constitutional reasoning
that transcends state boundaries.
This redundancy in
interpretative authority
is one way that our system
of government channels
disagreement in our diverse democracy
and so my contention
is that the legitimacy
of state constitutionalism mainly turns
on a proper understanding of the structure
of our federal system,
not on matters of
interpretive methodology.
So to bring the problem of legitimacy
into slightly greater focus,
it's helpful to observe at the outset
that the problem does not really arise
in cases where state
constitutional provisions
materially differ from
analogous federal provisions
in their text, purpose or history.
For example, the religion clauses
of many state constitutions differ
from the federal free exercise
and establishment clauses
and state courts have
interpreted those provisions
to be more protective of religious liberty
or to erect a higher wall
of church-state separation
than their federal counterparts.
Many state constitutions
also have provisions
that mandate government
provision of social services
such as education and
state courts have held
that these provisions
confer positive rights
that the Supreme Court
has refused to recognize
under the Federal Constitution.
In these areas, it is no surprise
that state courts interpreting
State Constitutions
may construe individual
rights more expansively
than federal courts interpreting
the Federal Constitution.
But what about cases involving
state Constitutional provisions
that do not meaningfully differ
from their federal analogs?
How should state courts
interpret such provisions?
Well a number of state
courts have set forth
lists of criteria or factors to determine
when divergence from federal
precedent is warranted.
As one example, the
Washington State Supreme Court
considers six non-exclusive factors.
A quote from their precedent, number one.
The textual language, number two.
Differences in the textual language.
Three, Constitutional history,
four preexisting state law,
five structural differences,
six matters of particular
state or local concern.
The Illinois Supreme Court
has said it considers
whether something is in quote,
the language of our Constitution
or in the debates and
the committee reports
of the constitutional convention.
Whether those things justify
a departure from federal precedent
and the high courts of
California, Connecticut,
New Jersey, Pennsylvania among many others
have stated similar criteria.
The problem with this approach,
the problems with this
approach have been elucidated
by Professor Williams among others.
Most significantly it
treats federal precedent
with a presumption of correctness
that has no sound basis
in our federal system.
Just as the Supreme Court,
when interpreting a provision
of the federal Constitution
does no accord a
presumption of correctness
to any state's interpretation
of an analogous state
constitutional provision,
or even to an interpretation
adopted by a majority of states,
there is no reason why a state court
when interpreting a provision
of its state constitution
should accord a presumption of correctness
to the Supreme Court's interpretation
of an analogous provision.
A state court should of course,
give respectful consideration to relevant
Supreme Court decisions
just as it should give
respectful consideration
to relevant decisions
of sister states.
And a state court may often be persuaded
that the Supreme Court's
approach is correct
and worthy of adoption.
But the point is that state courts
have the prerogative and duty
to interpret their state
constitutions independently.
A state court may consult precedent
as part of but not in lieu of
its own independent analysis
of the state constitutional issue.
When a state court does this and concludes
that federal precedent is unpersuasive
is it evasive or results-oriented
for the state court to adopt,
essentially the dissenting
view in a federal decision
as a matter of state law?
I think this kind of
criticism misses the mark.
Suppose a state court interpreting
its state constitution
declines to follow the
Supreme Court's decision
in United States versus Leon,
adopting the good faith exception
to the exclusionary rule
in the Fourth Amendment.
Suppose the state court
reaches this result
by analyzing the same textual, historical
and practical considerations
that the Supreme Court analyzed in Leon.
I do not think the state court can be said
to have been any more results-oriented
than the Justices who dissented in Leon.
Many Constitutional
issues are just difficult
and there are principled disagreements.
Similarly there is nothing
evasive about such departures
unless one assumes wrongly
that federal precedent
somehow binds state courts
in their interpretations
of state law.
The problem is not that
such departures are evasive
or results-oriented.
The problem instead is that
the reasons for departing
are said to be illegitimate
when they include
no state-specific grounds
and consist of analysis
no different than what a
federal court would undertake
in addressing the same issue
under the federal Constitution.
If state courts should not accord
a presumption of correctness
to federal decisions,
if they should instead
develop an independent
Constitutional jurisprudence,
then shouldn't that jurisprudence rest
on state specific considerations
that distinguish the meaning
of state constitutional provisions
from their federal analogs?
Or, does judicial federalism
essentially give litigants
two bites at the same
constitutional apple?
Consider as another
example, the Supreme Court's
1988 decision in
California versus Greenwood
which held that police
can search your trash
left at the kerbside of
your home without a warrant.
Although many courts
have adopted this rule
as a matter of state constitutional law,
several have not.
The New Jersey, I'm sorry, the
New Hampshire Supreme Court
found Justice Brennan's
dissent in Greenwood
more persuasive and concluded
that society is prepared
to recognize the expectation of privacy
in one's trash as reasonable.
The Washington State Supreme Court opined
that a person might reasonably expect
a licensed trash collector
to collect your trash
but this expectation does
not extend to the police.
And the New Jersey Supreme
Court found Greenwood I quote,
"Flatly and simply wrong as to the way
"people think about garbage."
(audience laughs)
The court did not rely on
state specific grounds,
instead making clear that and I quote,
"There is no unique New Jersey attitude,
"New Jersey state attitude about garbage."
I am not gonna make any
more jokes about that
at this point.
A similar story can be told
about same sex marriage.
In 2003 the Massachusets
Supreme Judicial Court,
thanks to Margie Marshall became the first
state High Court to hold
that same sex couples
had a Constitutional right to marry.
At the time the only
federal authority on point
was Baker versus Nelson,
an appeal from the Minnesota
Supreme Court ruling
against same sex marriage
that the U.S. Supreme Court
had dismissed for want of a
substantial federal question.
Five years later the
California Supreme Court
held unconstitutional the state's laws
restricting marriage to
opposite sex couples,
broadly ruling that discrimination
on the basis of sexual orientation
is subject to strict scrutiny
under California's
equal protection clause.
Five months after our decision,
this Connecticut Supreme Court
reached the same conclusion
on largely the same analysis.
At the time the U.S. Supreme
Court had not suggested
that sexual orientation discrimination
warranted any greater scrutiny
than rational basis review.
These state courts did not employ
any state-specific reasoning,
they simply disagreed
with federal precedent,
employing similar analytical approaches
but reaching different
doctrinal conclusions.
There are many other examples like this
and not all of them are
liberal in their results.
After the Supreme Court's decision
in Kelo versus New London.
Some state High Courts read
their state constitutions
to confer greater property rights,
protection of property rights
against eminent domain.
The Ohio Supreme Court agreed
with the dissenters in Kelo,
concluding that Kelo had
construed the concept
of public use too expansively.
The Supreme Court of
South Dakota disagreed
with Kelo's public benefit rationale
and construed public use
to mean use by the public.
These courts too do not
point to any meaningful
textual differences between the state
and federal takings clauses
or to any other state-specific factors,
they just reasoned from general principle.
So as Emory Law Dean Robert
Shapiro has observed,
the discomfort with these decisions
may be traced to the
conventional understanding
of a Constitution as an expression
of a sovereign people's
fundamental values.
One answer to the
countermajority in difficulty
is that judges when
interpreting a Constitution
do not act in the mode of
Ronald Dworkin's Hercules,
overriding the democratic
choices of the people,
rather constitutional
interpretation requires judges
to vindicate core principles that reflect
a permanent consensus of the people
over the transient policy preferences
of a shifting majority.
This understanding as applied
to the federal Constitution
is premised on the coherent identity
of the American people
as an enduring entity
with shared values.
The applicability of this understanding
to state constitutions is less clear.
Of course, each state's constitution is,
as a formal and historical matter
the enactment of the people of each state.
But many provisions of state constitutions
do not lend themselves to
state specific understandings
and in those areas it is not obvious
that states define meaningful
communities of value.
Just as there is no
unique New Jersey attitude
about reasonable expectations
of privacy in garbage,
there is no California
concept of equal protection
that is distinct from
the analogous concept
in the federal Constitution.
In these cases, the state
courts and the Supreme Court
are not interpreting different
concepts of equal protection
or unreasonable searches and seizures.
They are offering
different interpretations
of the same concept and
as Yale Law Professor
Paul Khan has said, the common
object of that interpretation
is American constitutionalism.
For several reasons it
should not be surprising
that state courts often interpret
state constitutional
provisions without relying
on state-specific sources.
As an historical matter,
state courts do not inherit
a comprehensive tradition
of elaborating basic rights by reference
to state-specific sources.
During the founding era and throughout
the 19th Century, the Bill
of Rights was understood
to apply only to the federal government.
Before the process of
selective incorporation,
the protection of basic liberties
was primarily the concern of state courts
interpreting state law.
This historical role of state courts
should not be exaggerated in
terms of its actual results
which were uneven at best
but what is notable is that
state constitutional decisions
from this era often employed
concepts of natural law
and common law reasoning that transcended
state-specific texts or understandings.
For example the Tennessee
Supreme Court in 1831
declared the principle
of non-retroactivity
of state laws impairing
rights on the basis of quote,
eternal principles of justice
which no government has
a right to disregard.
The Connecticut Supreme Court recognized
a criminal defendant's right
against double jeopardy
and right to counsel as a
matter of custom, or common law
and the Arkansas High Court in 1853,
noting that the State Constitution
contains no takings clause,
nonetheless enforced
that principle, quote,
as a law of natural justice.
Massachusetts Chief Justice
Lemuel Shaw described
this constitutional universalism
when he wrote in 1857
I quote, "In considering
Constitutional provisions,
"especially those embraced
"in the Massachusetts
Declaration of Rights
"and the amendments of
"the Constitution of the United States,
"in the nature of a Bill of Rights
"we are rather to regard
them as the enunciation
"of great and fundamental principles
"than as precise and positive directions
"and rules of action.
"Many of them are so obviously dictated
"by natural justice and common sense,
"it would so plainly be obligatory
"upon the consciousness of legislators
"and judges without any
expressed declaration
"that some of the framers
of state constitutions
"and even the convention which formed
"the Constitution of the United States
"did not originally prefix
a declaration of rights."
With the rise of legal positivism,
appeals to natural justice have given way
to modes of constitutional reasoning
such as originalism
that emphasize communal
rather than universal understandings.
But the notion of states as
sites of communal identity
with respect to basic
liberties has also given way
to new understandings
in light of our nation's
second founding and
reckoning with slavery.
The first sentence of the
14th Amendment says I quote,
"All persons born or
naturalized in the United States
"and subject to the
jurisdiction thereof are
"citizens of the United States,
"and of the state wherein they reside."
In addition to overruling Dred Scott
and securing the citizenship
of Black Americans,
this sentence makes clear
that national citizenship
is the primary political
identity of the American people
and that state citizenship
is secondary and derivative.
A function of where a
citizen of the United States
chooses to reside.
As case law makes clear states lack
an essential attribute of sovereignty
with respect to American nationals.
They have no authority
to control their borders
or to restrict state citizenship
apart from adopting
reasonable requirements
for bonafide state residents.
Our citizens thus have as
Justice Kennedy has said,
two political capacities.
One state and one federal
and these capacities
are not vestments that we
can only wear one at a time.
Under the citizenship clause one cannot be
a citizen of a state without also being
a citizen of the United States.
The primacy of national citizenship
and derivative nature of state citizenship
are today reflected in the porousness
of state boundaries and
their limited relevance
in the formation of political
and cultural identity.
Consider in this regard the
ease and extent of mobility
of people between states,
the national and global
integration of the economy,
the nationalization of consumer culture,
think Amazon, Walmart and the
concentration of mass media.
The expansion of the federal government,
the rise of national political parties.
The strength of powerful national lobbies
have also exerted a
homogenizing influence.
Although geography can demarcate
subnational communities,
subnational communities,
the ones that most readily come to mind,
for example urban versus rural residents,
those do not track state lines.
As a matter of constitutional design
and contemporary reality then,
the members of a state polity
are part of the national polity.
The institutions of state
government they create
exist not only to
satisfy their own desires
concerning the character and
content of political life
within the state but also
to satisfy the wishes
of the national polity
of which they are members
concerning the character and content
of political life throughout the nation.
It is thus no accident that
State Constitutionalism
in many areas has not invoked
the distinctiveness of a state's history,
values or character, what SUNY Buffalo
Law Professor James Gardner has called
a romantic subnationalism.
This is not to say that
there is no such thing
as state identity or that states cannot be
meaningful political subcommunities
of an internal integrity and cohesiveness
but it is to say that many
fundamental principles,
whatever their origins
in states' constitutions
are today properly and actually understood
as transcendent American principles.
The legitimacy of state constitutionalism
must therefore rest on a justification
for redundancy between
state and federal courts
in interpreting shared
constitutional principles
and here is where many state judges
feel a certain anxiety.
If we accept that federal
courts and state courts
are often interpreting a common object,
and if that object is
national in character,
then why shouldn't the interpretations
of the U.S. Supreme Court be controlling?
Of course they are not
controlling in the formal sense,
that the Supreme Court does not control
state court interpretation of state law
but if a state court and the
Supreme Court are deciding
the same substantive issue,
does a state court's departure
from federal authority rest
on a bonafide independent
and adequate stakeground
simply by virtue of labeling
it state constitutional law?
The problem here to be clear is not
that state courts lack
competence to declare rights
held in common by our nation's people.
Although state constitutions
define the existence
and powers of state courts,
the supremacy clause of the
Federal Constitution makes clear
that I quote, the judges in
every state shall be bound
by federal law including
the Federal Constitution.
So State Courts are thus
obligated and entrusted
to interpret Constitutional
principles whose reach extends
beyond state borders.
But when State Courts interpret
the Federal Constitution
they are acting as instrumentalities
of federal authority subordinate
to the Supreme Court.
Why do state courts have
independent authority
to speak on matters of
American Constitutional law
outside the chain of
federal judicial command?
This question goes to the
heart of the rationale
for judicial federalism.
One kind of answer to
why our system allows
two bites at the same
apple is that state courts
and federal courts are
differently situated
when it comes to interpreting
Constitutional rights.
NYU Law Professor Burt
Neuborne famously argued
that state courts are
less favorable forums
than federal courts for litigating,
for litigants seeking enforcement
of Constitutional rights
but there are considerations
that cut the other way.
First, Federal Courts may underenforce
certain Constitutional norms because of
institutional rather
than analytical concerns
and one of those institutional
concerns is federalism.
The Supreme Court may decline to enforce
a Constitutional right to its
full conceptual boundaries
because of concern that any
interpretation it renders
would not only bind the federal government
but it also impose
uniformity on the states.
This concern obviously has no
applicability to state courts.
They need not worry that
their constitutional rulings
with constrain the prerogatives
of other jurisdictions.
Second, most state judges
face electoral accountability
in contrast to the life tenure
enjoyed by federal judges.
Although majoritarian
pressures are thought
to make state courts less responsive
than federal courts to
individual rights claims,
the evidence is mixed.
Some studies have found
that State Appellate Courts
fare no worse and in
some areas fare better
than federal courts in
enforcing individual rights
and despite Hamilton's
claim that insulating
federal courts from political control
would make them quote,
"An excellent barrier to encroachments
"and oppressions of the
representative body."
The modern Supreme Court has
not generally strayed far
from public opinion.
Hamilton may have been a
Constitutional rockstar
but he was no political scientist.
Moreover virtually all state constitutions
are easier to amend than
the federal Constitution.
Unlike a Federal Constitution decision,
a State Constitutional
ruling can be undone
by popular initiative in 18
states including California.
Political accountability can
induce judicial restraint
but political accountability
can also lessen
the countermajoritarian difficulty
and perhaps counterintuitively
may aid the legitimacy
of countermajoritarian decision
making by State Courts.
State Courts may diverge
from federal authority
because of these
institutional differences,
or they may diverge because
of sheer disagreement
on the substantive meaning
of a Constitutional right.
Either way, judicial federalism
serves important purposes.
Most directly a state court
can provide protection
for basic liberties that
would otherwise go unprotected
from that state but the
impact of state rulings
can be even more far reaching.
And a cumulation of state decisions
that depart from federal
precedent may induce
the U.S. Supreme Court
to reconsider the issue.
In Mapp versus Ohio, the
Supreme Court abandoned
its earlier refusal to
apply the exclusionary rule
to the states noting that
more than half the states
had adopted that rule by legislative
or judicial decision and
emphasizing in particular
the California Supreme Court's decision
in People versus Kahan.
In Batson versus Kentucky the leading case
on racial discrimination
in jury selection,
the court overruled Swain versus Alabama,
noting that five state courts
had departed from Swain
in interpreting their State Constitutions
and in Lawrence versus
Texas the court explained
that quote, criticism of
Bowers versus Hardwick
has been substantial and continuing
and it observed that quote,
the courts of five different states
have declined to follow it
in interpreting provisions in
their own state constitutions
parallel to the due process
clause of the 14th Amendment.
State constitutional
decisions can also shape
the development of
federal Constitutional law
when the Supreme Court
confronts an issue for the first time.
In New York Times versus Sullivan
the court observed that the
actual malice requirement
for proving defendants,
proving I'm sorry, defamation
of a public official
or a political candidate had been adopted
by 10 State Courts.
This citation was perhaps no accident
because the author of New
York Times versus Sullivan
was no other than Justice Brennan.
And the court has looked to state practice
including state constitutional law
to determine what constitutes
a fundamental liberty
interest protected by the
14th Amendment doctrine
of substantive due process.
Although federal courts have not borrowed
from state constitutional
doctrine to the same degree
as state courts have
used federal doctrine,
these examples confirm that state courts
and federal courts are
engaged in a common dialogue
when it comes to interpreting rights
secured by both the federal
and state constitutions.
As Duke Law Professor
Joseph Blocher has said,
the structure of American federalism
need not be one that simply divides
and separates judicial power.
It can instead be one in which
various interpretive bodies,
both state and federal are
engaged in a shared enterprise
of articulating constitutional values.
State courts need not be
independent laboratories,
they can be part of the same
general research institution
as the United States Supreme Court.
Against these considerations it is said
that state courts should
proceed cautiously
because of the general advisability
in a federal system of
uniform interpretation
of identical Constitutional provisions.
Vertical uniformity, vertical uniformity
has been a particular concern in the area
of criminal procedure
where courts appear particularly worried
that having two sets
of rules sows confusion
among the bench and
bar and law enforcement
over which rules to follow and also leads
to inconsistent results
whereby evidence from the same
arrest or crime could be
admissible in federal court
but not state court.
As a practical matter it is
questionable how significant
this concern is, in light
of the already substantial
vertical disuniformity in
the criminal justice system.
It is already the case that
law enforcement officers
must often navigate differing federal
and state criminal procedure,
evidentiary rules and
substantive criminal law.
Moreover when federal officers
are especially concerned
about admissibility of
evidence or unsure which forum
a prosecution will take place,
they can always conform their conduct
to the more protective state standard.
Of course simplicity and predictability
are important virtues but as
the New York Court of Appeals
has observed, the interest
of state federal uniformity
is simply one consideration to be balanced
against other considerations
that may argue
for a different state rule.
Apart from its practical import,
the allure of uniformity perhaps lies
in a more expressive dimension.
Vertical uniformity is considered
a jurisprudential virtue.
In part because it inhibits forum shopping
and confers the appearance of neutrality.
Some judges worry that
giving different meanings
to identical textual
provisions may seem illogical
or manipulative or may breed
distrust in the legal system.
Others warn that independent
state constitutionalism
may diminish the moral authority
of the U.S. Supreme Court
and as former Wisconsin Chief
Justice Shirley Abrahamson
has observed, some judges, I quote her,
"Regard the state
constitutional law movement
"as threatening the vision
of one nation under law."
But the American vision
of one nation under law
has always been complex,
requiring an account of
not only what various
Constitutional provisions mean
but also who gets to decide.
It is no accident that the
framers focus their efforts
on crafting an intricate
and durable structure
of government, only later adopting
as amendments to the main
document a Bill of Rights
stated in general terms.
In the Compound Republic of
America Madison explained,
the powers surrendered by the people
is first divided between
two distinct governments
and then the portion allotted to each
subdivided among distinct
and separate departments,
hence a double security arises
to the rights of the people,
the different governments
will control each other
at the same time that each
will be controlled by itself.
Federalist 51.
The framers knew that a
large and diverse nation
committed to liberty will not often agree
on one right answer
to questions of intense
public controversy.
The redundancies built into
our structure of government
largely serve to channel
and manage conflict,
not necessarily to facilitate
permanent resolution.
The meaning and application
of Constitutional principles
are thus the subject of ongoing
interpretative conflict.
Courts occasionally resolve such conflict
through proper exercise of
their delegated authority
but the fact that courts have authority
to decide Constitutional controversies
does not mean that courts are oracles
of Constitutional truth with a capital T.
As Justice Jackson said, I quote him,
"Whenever decisions of one
court are reviewed by another,
"a percentage of them are reversed.
"That reflects a difference
in outlook normally found
"between personnel
comprising different courts.
"However reversal by a
higher court is not proof
"that justice is thereby better done.
"There is no doubt that if there
were a Super Supreme Court,
"a substantial portion of our reversals
"of state courts would also be reversed.
"We are not final
because we are infallible
"but we are infallible
only because we are final."
Constitutional law is contested terrain
and we cannot expect our
governmental institutions,
including the courts to resolve very deep
and fundamental debates to
everyone's satisfaction.
In the long run,
the legitimacy of American
constitutionalism rests
not only on the substantive
merits of particular decisions
but also on the capacity of
our governmental structure
to give full expression
to the debates themselves.
Many of our most cherished
Constitutional principles
are stated in general terms
open to various meanings
and application.
The unique role of
courts is that they frame
a mode of contestation
whereby each side lays claim
to the same legal heritage,
the same legal text,
the same historical tradition
and it is that mode of contestation
as much as its substantive results
that binds us together as a nation.
State Constitutionalism
is properly understood
as a mechanism by which
ongoing disagreement over
fundamental principles
is acknowledged and
channeled in our democracy.
Far from endangering the
legitimacy of Constitutional law,
interpretive pluralism is
a source of its resilience
and deep resonance with
our diverse citizenry.
When a state court departs
from Supreme Court precedent
to secure greater protection
for individual rights,
the state court registers a very forceful
and public dissent.
Whether or not it influences other states
or eventually induces the Supreme Court
to reconsider its precedent,
the state decision
carries forward a dialogue
over the meaning of our basic liberties.
In short, state
constitutionalism is one way
in which our structure of
government provides an outlet
for Constitutional conflict.
It is true that state
Constitutionalism cannot serve
this function by authorizing
downward departures
from the floor of federal
Constitutional protections
established by the Supreme Court
but this fact only serves to underscore
the delicacy involved in adjudicating
individual rights claims.
On the most hotly debated issues,
it is questionable to
what extent the court can,
in the words of Casey
call the contending sides
of a national controversy to
end their national division
by accepting a common mandate
rooted in the Constitution.
The achievement of
broad societal consensus
on what the Constitution mandates
is rarely ever the direct byproduct
of judicial decisions alone.
Even Brown, let us not forget,
went largely unenforced for over a decade
until Congress and the
President stepped in.
The dangers involved in closing off debate
in one direction should make
us wary of closing off debate
in the other as well.
So, in closing, let me
again thank NYU and IJA
for continuing this annual
tradition of the Brennan Lecture
on State Courts and Social Justice.
The composite work of the
courts of the 50 states,
Justice Brennan once wrote,
probably has greater significance
in measuring how well America attains
the ideal of equal justice for all.
The state courts of all
levels must annually hand down
literally millions of
decisions which determine
vital issues of life, liberty and property
of human beings of this nation.
We should remind ourselves
that it is those state court decisions
which finally determine
the overwhelming aggregate
of all legal controversies in this nation.
Justice Brennan believed
as I think you believe
that state courts
matter, state law matters
and state constitutional law matters.
My point this evening has
not been that state courts
interpreting state
constitutions should depart
from federal precedent more than they do
or that they should do
so in particular areas.
State courts should always
give respectful consideration
to federal precedent and
it may often be the case
that the Supreme Court's
holdings or analytical frameworks
are well-reasoned and worthy of emulation.
A state court may so conclude,
but it should do so by
applying its own judgment,
not by applying a
presumption of correctness
to federal authority.
A state court may
recognize individual rights
that go unrecognized by the Supreme Court
because of textual or
historical considerations
unique to that state or its constitution.
When state-specific sources
bear on the constitutional issue
they should be consulted first.
But there is nothing
illegitimate about a state court
rejecting the Supreme
Court's interpretation
of a parallel constitutional
provision on grounds
that are not state specific.
Our nation's framers
understood that although
a written Constitution can and should
declare our basic liberties,
their precise contours are
open to vigorous debate,
often with no easy answers.
Our structure of
government disperses power
in order to channel conflict.
Thereby minimizing the
risk that any single branch
of any single level of government
will have unchecked authority
to impose its version
of Constitutional truth.
Justice Kennedy famously said
that the genius of the framers
was that they split the
atom of sovereignty.
The path to nationhood
that began in Philadelphia
would eventually travel through Appomattox
and places like Selma and
Little Rock and beyond.
But the framers' act of
vision bequeathed to us
somewhat paradoxically a
durable structure for fusing
one nation out of a diverse democracy.
Judicial federalism is
part of this structure
and state constitutionalism
is part of the conversation
that sustains us as one
people, we the people
of the United States.
So if Justice Brennan's 1977
article was an invitation
to begin that conversation
in the state courts,
then I hope you will
join me today in saying
let the conversation continue.
Thank you all, very nice.
(audience applauds)
