Robert F. Williams State Constitutional Law Lecture: The State of State Constitutional Law, The New Judicial Federalism and Beyond

Robert F. Williams

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.

                          Justice William J. Brennan, Jr. (1977)


Jeffrey Sutton, a well-respected judge who sits on the United States Court of Appeals for the Sixth Circuit, endorses Brennan’s thesis and provides four examples in which state constitutional protections were or are more robust than federal ones. These examples demonstrate that the law may be best served if proponents of a new or expanded right give priority to a claim based on their state constitution, and that state judiciaries can set an example for the federal judiciary.

  Justice John Paul Stevens (Ret.)(2018)

John Dinan

Judges and scholars in various countries have recently embraced the doctrine of unconstitutional constitutional amendments, whereby courts invalidate amendments not on account of procedural irregularities but rather because they violate implicit substantive limits on the sorts of amendments that can be adopted. In this Article, I investigate the extent to which this doctrine has migrated to the United States and particularly to U.S. state courts, which review state constitutional amendments on a regular basis. In contrast with several scholars who have detected some support for this doctrine in U.S. state court rulings, I conclude that U.S. state courts have not invalidated amendments for violating implicit substantive limits. State constitutional amendments have been overturned for violating federal guarantees, running afoul of requirements regarding the accuracy of ballot language, failing to comply with procedural rules, or violating certain rules regarding the processes for passing various amendments. However, state courts have not disqualified or overturned amendments for violating implicit bans on addressing certain topics. An additional purpose of this Article is to explain why this doctrine has not been embraced by U.S. state courts and, in the process, contribute to comparative constitutional inquiries into the circumstances that are favorable and unfavorable to judicial invocation of the doctrine. Judicial reluctance to invoke this doctrine is fueled in part by a polity’s level of commitment to popular sovereignty and the degree to which the public is directly involved in the amendment process, both of which are at a premium in the American states. Judicial reluctance is also a product of the types of amendments that courts are asked to review and whether these amendments directly challenge and seek to overturn judicial interpretations of constitutional principles. Many of the amendments that generate requests to invoke this doctrine in U.S. state courts are of this kind, thereby presenting a particularly stark conflict between popular sovereignty and judicial supremacy and making it difficult for courts to prioritize the latter over the former.

Ann M. Lousin

On November 5, 2018, Illinois observed—more accurately, failed to observe—the semicentennial. of the vote calling for The Sixth Illinois Constitutional Convention. On November 5, 1968, 4,705,852 Illinoisans cast votes on the issue of whether to call a Constitutional Convention. By a vote of 2,979,977 for and 1,135,440 against, the voters decided to call the Sixth Illinois Constitutional Convention to revise or replace the century-old Illinois State Constitution. Although there was a renaissance of interest in state governments after World War II, only about half of states that sought to call a constitutional convention between 1950 and 1964 succeeded. Moreover, there were strictures in the Illinois Constitution of the time making it difficult to amend the constitution and to call a convention. Clearly, those who sought to hold an Illinois Constitutional Convention in the middle to late 1960s had no grounds for optimism.

Why did Illinois succeed in calling a convention in 1968? This Article offers an answer against the backdrop of Illinois constitutional history and of the particular situation in Illinois and around the country in the mid-1960s. Because the author is a native Illinoisan, was present during those years, and served as a research assistant during the Convention, the analysis is personal to a great extent. Apart from public documents, there are few reliable records of what actually motivated Illinoisans at that time. The author knew many of the people involved, almost all of whom are now gone, and had private conversations with them over the years.

Three books are of seminal importance and must be acknowledged up front. The first is Janet Cornelius’s Constitution Making in Illinois 1818–1970 (1972), and the second is JoAnna M. Watson’s Electing a Constitution: The Illinois Citizen and the 1970 Constitution (1980). Because the authors were close observers of the processes of getting a convention approved, drafting a constitution, and securing voter ratification, they were able to interview key players in the late 1960s and early 1970s. This Article’s analysis relies upon the informed perspective of each. The third book is the most recent study of Illinois constitutional history, Frank Cicero, Jr.’s Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778–1870(2018). A fourth key source is Jerome B. Meites’s Article, The 1847 Illinois Constitutional Convention and Persons of Color, which discusses Illinois constitutional history through 1848.

Part I of this Article outlines the amending process in Illinois constitutional history, with emphasis upon conventions, from 1818 until 1950. That year, the voters adopted the Gateway Amendment, which was designed to facilitate amending the Illinois Constitution. Part II describes the fifteen attempts to amend the Illinois Constitution after adoption of the Gateway Amendment, from 1952 through 1966. Part III describes the events of 1966 and 1967 which made possible a referendum on November 5, 1968. Part IV describes the campaign for a constitutional convention (“con con”) in 1967–68. Part V concludes that the factors which created a favorable climate for a convention came together almost fortuitously and that it is unlikely those factors will come together again in the near future.

Wade L. Dickey

In Gannon v. State (Gannon V), the Kansas Supreme Court asserted itself in the political minefield of educational finance in the state of Kansas. The Kansas Supreme Court perceived its duty, as the highest court in the state, to determine whether the legislature realized its constitutional obligation to Kansas students. The checks and balances system in Kansas guided the supreme court in deciding whether the legislature’s new statute provided suitable funding for education and whether the state had created unconstitutional, wealth-based disparities among districts. The court applied the adequacy and equity standards embedded in article VI, section 6 of the Kansas Constitution. The court held that Senate Bill 19 was unconstitutional under both the equity and adequacy grounds. The court then ordered the state to enact legislation that would come into compliance with the constitution; it retained jurisdiction over the state’s appeal and stayed the issuance of a mandate until June 30, 2018. This Comment will analyze Gannon V in detail. The analysis will include: the pertinent facts, the procedural history of the ongoing stalemate, the court’s holding and reasoning, subsequent history, and the potential impact of the decision on educational finance litigation as well as the checks and balances system in Kansas.

North Dakota Supreme Court Restrains Legislative And Executive Power Over Appropriations Bills. North Dakota Legislative Assembly v. Burgum, 916 N.W.2d 83 (N.D. 2018).

Henry M. Grabbe

In North Dakota Legislative Assembly v. Burgum, the North Dakota Supreme Court addressed two issues. First, the court addressed the petition of the Legislative Assembly that North Dakota Governor Doug Burgum’s partial vetoes on five appropriations bills were unconstitutional as beyond the governor’s item veto authority. Second, it addressed the cross-petition of Governor Burgum that the Legislative Assembly unconstitutionally conditioned access to appropriated funds upon the approval of a legislative committee in two bills, violating the non-delegation and separation of powers doctrines.

This Comment will provide the factual and procedural history leading up to the decision of the North Dakota Supreme Court in Burgum, along with the constitutional and common law background on executive and legislative authority in North Dakota. This Comment will also evaluate the court’s analysis in Burgumand ultimately argue that the court properly restricted Governor Burgum’s item veto power. Additionally, and in spite of the dissenting opinions which criticize the breadth of the majority’s analysis, the court properly addressed the non-delegation and separation of powers issues that arise in the governor’s cross-petition.

Steven Land

In Baldwin v. City of Estherville, the Iowa Supreme Court was called upon to answer the following certified question: “[c]an a defendant raise a defense of qualified immunity to an individual’s claim for damages for violation of article I, [section] 1 and [section] 8 of the Iowa Constitution?” Article I, section 8 of the Iowa Constitution tracks the Fourth Amendment to the Federal Constitution and states:“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” After appellee Greg Baldwin was mistakenly arrested pursuant to an ordinance that was not—and is still not—a valid and effective ordinance, he filed suit against the city of Estherville, Iowa, and against the arresting officers both individually and in their capacities as officers. The Iowa Supreme Court ruled that qualified immunity “should be available to those defendants who plead and prove as an affirmative defense that they exercised all due care to conform to the requirements of the law.”

This Comment aims to provide a clear account of the factual and procedural histories leading to the Iowa Supreme Court’s decision in Baldwin, as well as the history and development of qualified immunity. It will examine the court’s analysis and argue that the court missed the mark in Baldwin with respect to both legal and policy implications of critical importance.

Gina Ragone

The influential United States Supreme Court case Kelo v. City of New London dramatically expanded the power of eminent domain and increased right-to-take litigation. To minimize Kelo’s effect, many states immediately imposed strict limitations on eminent domain power. However, are these limitations actually doing any work? Or, as many fear, is Kelo so influential that state legislatures will struggle to successfully restrict eminent domain power?

The Massachusetts Supreme Judicial Court Interprets “or” not to be Disjunctive in Article XLVIII. Anderson v. Attorney General, 99 N.E.3d 309 (Mass. 2018).

Scott Wardell

In Anderson v. Attorney General, the Supreme Judicial Court of Massachusetts (“SJC”) held that an initiative petition, seeking to amend the state constitution by imposing a graduated tax on citizens earning more than $1 million annually and allocate those funds raised to education and transportation priorities, violated article XLVIII of the Massachusetts Constitution (“article 48”) and was therefore improperly certified by the Attorney General. The SJC’s holding rested on two determinations. First, the SJC determined that article 48’s language requiring initiative petitions to “contain only subjects ‘which are related or which are mutually dependent’” should not be read disjunctively. Instead, the relatedness requirement was a necessary condition for passing constitutional muster, regardless of the mutual dependence of subjects therein. Second, the two spending provisions attached to the proposed graduated tax were not sufficiently related to each other, or the tax itself, to give a reasonable voter the opportunity to “accept or reject the petition as a unified statement of public policy.” Rather, should the initiative petition appear as a ballot question, a voter would be “in the ‘untenable position of casting a single vote on two or more dissimilar subjects.’”

This Comment will discuss the various approaches laid out in Andersonby the majority, concurrence, and dissent; analyze the soundness of the constitutional interpretation employed by the majority; and consider the impact this decision may have on future initiative petitions under article 48 of the Massachusetts Constitution.

Professor Williams and the Education Debates in State Constitutional Law

Scott R. Bauries

Professor Robert “Bob” Williams, whom The Honorable Jeffrey Sutton once aptly referred to as the “Dean of State Constitutional Law,” has announced a well-earned retirement, leaving the world of state constitutional law teaching and scholarship without its most prominent and influential intellectual voice. Although it is clear based on mere citations to Professor Williams’s work that he has influenced nearly every debate—and every scholar—in state constitutional law, this Essay contribution to the Festschrift in Professor Williams’s honor outlines two strands of Professor Williams’s work that have greatly influenced my own work.

In Celebration of Robert F. Williams

Mary L. Bonauto

This is a wonderful gathering and celebration of Bob. It’s great to be here with you and hear your recollections about how Bob has mentored you and contributed to such a phenomenal body of scholarship and case law.

I am here with enduring gratitude to Bob for his focusing on and growing the field of state constitutional law and as one of legions of people he has helped with litigation.

Beyond Rights, Courts, and the U.S. Federal Constitutional Model: Robert F. Williams and the Study of State and Subnational Constitutionalism

John Dinan

Bob Williams has been a long-time mentor and supporter for many of us who study state constitutions. Exceptionally gracious in welcoming young scholars to the field, he offers encouragement and assistance to all of us, regardless of the stage of our careers. He has always gone out of his way in publications, conference presentations, and other forums to highlight and boost the work of other scholars who study state constitutions. He also goes to great lengths to put scholars in this area in contact with one another, thereby contributing to the camaraderie and collegiality that characterize the state constitutional law subfield. A wonderful companion at conferences in the United States and around the world, he has enlivened countless meals and gatherings of the growing community of scholars and jurists with an interest in state constitutions.

I will focus in my remarks on Bob’s scholarship, with particular attention to four of the many ways he has charted new avenues for studying state constitutions. First, Bob has highlighted the importance of studying the full range of provisions found in state constitutions by encouraging scholars to take account of structural provisions along with the rights provisions that generally attract the most attention. Second, although he has written a number of influential articles examining judicial interpretation of state constitutions, he has been instrumental in directing scholars to study other state constitutional processes, especially amendment processes and constitutional revision commissions. Third, his research has been exceptionally useful in informing and guiding the work of state constitution-makers, especially as they grapple with whether to revise constitutions and what to include in them. Finally, he has been at the forefront of scholarly efforts to investigate subnational constitutions in other federal countries and to develop the field of comparative subnational constitutionalism.

Doctrinal Dead Ends and State Constitutional Rights Innovation

Lawrence Friedman

In his book, 51 Imperfect Solutions, federal Appeals Court Judge Jeffrey S. Sutton explores an issue quite familiar to state constitutional law scholars: the infrequency with which state courts interpret the individual rights provisions of their own constitutions independently of the U.S. Supreme Court’s understanding of the correlative federal constitutional provisions. In Sutton’s view, the relative lack of independent state constitutional rights analysis belies its strategic and potentially influential role in the development of constitutional law. “For too long,” he observes, “we have lived in a top-down constitutional world, in which the U.S. Supreme Court announces a ruling, and the state supreme courts move in lockstep in construing the counterpart guarantees of their own constitutions.”

Lesson from a Journey Through State Subnational Constitutional Law

James A. Gardner

It is a great pleasure to join with you today to honor our friend and colleague Bob Williams. Bob and I have known each other for nearly thirty years now. I’ll never forget the day we met. There I was, strolling peacefully through the groves of academe, minding my own business, lost in thought, when a car screeched to a halt beside me. The passenger door flew open. A voice said: “Get in!” It was Bob. I got in.

It has been a hell of a ride. The journey has been intellectual, but also deeply personal. It has been metaphorical, but also joyously literal. Riding along with Bob took me first to places like Albany, Camden, and Detroit; but later to Italy, Greece, and Norway; and even later, after I began to chart my own course a bit, to Spain, Austria, Switzerland, Germany, Argentina, and many other places.

Along the way, I’ve learned many important lessons. Some I learned directly from Bob; others I learned as a consequence of traveling the road that Bob first showed me. I’d like to take this opportunity to share some of those lessons with you.

Personal Recollections of Professor Robert F. Williams

Helen Hershkoff

When Professor Justin Long contacted me about a Festschrift for Professor Robert F. Williams, I was honored to join in the tributes and dismayed at the thought of Professor Williams’ retirement. For as long as I can remember, going back to the Reagan presidency and my days as a poverty lawyer, I’ve associated Bob with state constitutions—as the Hon. David Schuman stated in this law review just two years ago, “‘Bob’ Williams has long been the godfather of state constitutional law scholarship.” Bob’s work has been called not only “impressive,” but also a “tour de force”; his treatise, The Law of American State Constitutions, was heralded as “a milestone for the field,” and state supreme courts routinely cite to his work as authoritative.

Lockstepping: A View From a Tiny North Atlantic Jurisdiction

Kristian Joensen

During the spring semester of 2018, I taught a master’s level course at the University of the Faroe Islands entitled “Sub-state Constitutions.” The background for the course was that around this time Løgtingið [the Faroese parliament] was debating a proposal for a new Faroese Constitution.

On the reading list for the course were several articles from American sub-state constitutional theorists that had been a source of inspiration for a long time, but the first and foremost of these was Professor Williams’s article,State Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or Prospective Lockstepping? This article was on the reading list and keeps reappearing in various courses because it has proven very helpful in shedding light on some aspects of Faroese legal practice, particularly given the Faroese position as a semi-autonomous polity within a larger Danish state structure. As preparation for teaching this course, I contacted Professor Williams to inquire if he had any examples of “divergence” cases. He graciously sent me some cases that I was then able to assign as readings for my course.

In this article I will use the conceptual framework from that article to analyze select Faroese cases in order to illustrate how lockstepping contra independent interpretation is a topic of relevance not only to a formal federation like the United States, but also to other legal systems that, although they are not formally federally arranged, have important de facto federal-like features. I will first give a basic overview of Faroese legal and political history, which will be followed by an explanation of the Faroese home rule system.

Robert F. Williams: A Scholar of Imagination and a Teacher of Kindness

Justin R. Long

I grew up in Hartford, Connecticut and attended public school there during the initiation and prosecution of state constitutional litigation to desegregate the schools. The lawsuit was filed when I was in fourth grade, went to trial when I was in middle school, and was decided in the state supreme court when I was a freshman in college. The plaintiffs went back to court to seek enforcement of their victory when I was in law school, and I wrote about it. So for me, an interest in state constitutionalism has been personal as well as intellectual, and older than my adult teeth.

In law school at Penn, I convinced a group of friends to join me in a group “independent” study of state constitutionalism. I cobbled together some sources and we met every week to discuss. We wrote our final papers, looked around the seminar room, and quickly realized we were entirely inadequate as peer reviewers. So out of the blue, I cold called Bob Williams across the river at Rutgers. We had read several of his pieces, as well as his political science colleague Alan Tarr’s outstanding expository book, and the chance to ask for some advice from the nation’s leaders in the field (who worked ten minutes away from my downtown apartment) seemed too significant to pass up.

Professor Robert F. Williams – Teacher, Mentor, Scholar, & Friend

Jonathan L. Marshfield

I first met Professor Williams when I was a law student at Rutgers-Camden. When I enrolled in his course on State Constitutional Law, I knew next to nothing about state constitutions and very little about public law in general. Professor Williams’s course was transformative for me. It exposed me to a new world of institutional arrangements, arguments, problems, and solutions. More importantly, however, it introduced me to Professor Williams: a teacher, mentor and, ultimately, a friend who has impacted my career and life in profound ways.

Public Health Emergencies and State Constitutional Quality

Daniel B. Rodriguez

I am pleased and privileged to contribute to this Festschrift in honor of Professor Robert Williams. No legal scholar has contributed more to the cause of enhancing the profile of state constitutionalism and state constitutional law than Bob Williams. He has advanced the field immeasurably, through his teaching, his scholarship, his mentorship of many law professors in this field —including this author,— and his role in leading the peerless state constitutional law lecture, given annually and destined for the pages of this law review. Many of us have been ever shaped by his approach to this field, one which looks at not only judicial interpretation of state constitutions—a topic which became much in vogue after the publication of Justice William J. Brennan’s famous 1977 Article, State Constitutions and the Protection of Individual Rights,— but at the deep structure and broad elements of state constitutionalism. With Bob Williams’s leadership and encouragement, many are focusing anew on matters of federalism and of state constitutional design. It is within this latter tradition that I offer this Article.

As I write this, we are in the midst of a historic era in American regulatory law, one in which state government officials have implemented draconian restrictions on individual and business behavior, all under the rubric of the state police power and accompanying statutes that authorize aggressive state governmental action. As disputes over the government’s legal authority to impose severe regulations continue to work their way through the courts, commentary will grow over the merits of particular decisions. Moreover, there have already been valuable contributions to the discussion of how best to frame these legal challenges under the rubric of Jacobson v. Massachusetts, the seminal 1905 case that addressed the balance to be struck between public health actions under the police power and civil liberties. My focus here is not on this constitutional adjudication, either in the particulars of the disputes or in the general approach courts should follow in resolving these controversies. Rather, I want to look at this issue from a structural perspective, asking how best to think about constitutional and institutional design given the challenges raised by the most remarkable health emergency presented by coronavirus disease 2019 (“COVID-19”). Consider this Article as a thought experiment, one that looks at how we might redesign state constitutions to enable government to respond most effectively to these kinds of emergencies.

The Rise of State Constitutional Law: Equality and Liberty

Jeffrey M. Shaman

For many years, the teaching of constitutional law in American law schools focused primarily—in fact, almost exclusively—on decisions of the United States Supreme Court interpreting the Federal Constitution. For those who believe that equality and liberty are essential to a free society, this had become a disheartening affair as the Supreme Court became increasingly antipathetic, if not hostile, to the recognition of individual rights. A different story, however, was transpiring at the state level where a number of states courts had broken free of federal dominance of constitutional law and were turning to their state constitutions to protect individual rights and liberties. State constitutional law, it became apparent, was where the real action was and where social justice was moving forward, not stagnating as it was in the federal realm.

Robert F. Williams was an early and compelling advocate for state constitutionalism and for what was then called the “New Judicial Federalism.” In numerous articles Professor Williams explained that in our federal system of dual sovereignty, state constitutional law is autonomous of federal constitutional law. Sovereign in their own right, the states are empowered to adopt their own constitutions and to interpret them as they see fit, independent of federal constitutional law.  As Professor Williams described, state courts are free to “interpret their constitutions to provide different and more extensive rights than those provided by the [F]ederal [C]onstitution.”

The Career of Robert Williams: An Appreciation

G. Alan Tarr

Robert Williams has for decades been the premier legal scholar dealing with American state constitutions and with subnational constitutions in other countries. I had the honor and pleasure of serving as his colleague and collaborator for more than three decades—someone once remarked that our partnership had lasted longer than many marriages and was happier than most as well. I am therefore delighted to contribute to this symposium honoring Professor Williams and recognizing his many accomplishments. My article will briefly highlight his extraordinary contributions as a scholar of American state constitutional law, as a scholar of comparative subnational constitutionalism, as an educator, and as an institution-builder.


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