Kafker: America's Other Constitutions

835854_KAFKER_FINAL.
DOC(DONOTDELETE) 5/16/201112:25:59PM
AmericasOtherConstitutions:Book
ReviewofTheLawofAmericanState
Constitutions
SCOTTL.KAFKER

ABSTRACT
American constitutional law is primarily examined through a single

lensthatoftheU.S.Constitution.TheLawofAmericanStateConstitutions,
by Professor Robert F. Williams, corrects our constitutional vision by
guiding us through the intricacies of state constitutional law and its
complex and complementary relationship to federal constitutional law.
TherearefivesectionstoProfessorWilliamssbook:(I)StateConstitutions
inAmericanConstitutionalFederalism;(II)RightsGuaranteesunderState
Constitutions: The New Judicial Federalism; (III) The Structure of State
Government;(IV)UniqueInterpretationIssuesinStateConstitutionalLaw;
and (V) State Constitutional Amendment and Revision. This Review will
examine the substance of these particular sections, which are united by
ProfessorWilliamssoverarchingobjectiveofinformingusthatwecannot
ignore the important differences between state and federal constitutions
withoutunderminingthedesignofAmericasdualconstitutionalstructure.

TheHonorableScottL.KafkerisanassociatejusticeontheMassachusettsAppealsCourt.
HealsoteachesstateconstitutionallawatBostonCollegeLawSchool.
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INTRODUCTION
A
merica has a dual constitutional structure: state and federal. Yet
American constitutional law is primarily examined in classrooms
and even in courtrooms through a single lens, that of the U.S.
Constitution.Tocorrectourconstitutionalvision,TheLawofAmericanState
Constitutions, by Professor Robert F. Williams, should be on the required
reading list of all judges, lawyers, scholars, public officials, and citizen
activists who chart the course of constitutional law in this country.
Published by Oxford University Press, this distinguished work provides
the expert guidance necessary to navigate the intricacies of state
constitutional law and its complex and complementary relationship to
federal constitutional law. When read together with Professor Williamss
other scholarship, including his superb textbook, State Constitutional Law:
CasesandMaterials,theentire,blossomingfieldcanbeexplored.1
Fortunatelyforus,inthespringof1967,beforeheenteredlawschool,
Williams worked as a legislative aide for the Florida Legislature while it
revisedthe1885FloridaConstitution.2Thussparkedalifetimedevotionto
state constitutional law that continues to this day.3 Since 1980, when he
began teaching at Rutgers University School of Law, he has been at the
forefront of scholarship in this area.4 Along with his political science
colleague G. Alan Tarr, Professor Williams runs the Rutgers Center for
State Constitutional Studies as Associate Director.5 For the past two
decades, the Rutgers Law Journal has also published an Annual Issue on
State Constitutional Law.6 Outside of academia, hundreds of judges have
benefitedfromthemanyprogramsthathehaspresentedattheConference
ofChiefJustices,theAmericanBarAssociationsAppellateJudgesSeminar
Series, and whenever andwherever else his services have been requested
by the judiciary. His encyclopedic command of the subject matter has
madehimaprominentguideforjudgesaswellaslawstudents.
Professor Williams has built this 415page book upon a huge
foundationofotherstateconstitutionallawscholarship,includinghis1132
1See ROBERT F. WILLIAMS, STATE CONSTITUTIONAL LAW: CASES AND MATERIALS (4th ed.
2006)[hereinafterSTATECONSTITUTIONALLAW:CASESANDMATERIALS].
2Biography of Robert F. Williams, RUTGERS LAW: DIRECTORY, http://camlaw.rutgers.edu
/directory/rfw/(lastvisitedMay16,2011).
3Id.
4Seeid.
5Seeid.
6State
Constitutional Law Issues, RUTGERS LAW JOURNAL | STATE CONSTITUTIONAL LAW
ISSUES, http://org.law.rutgers.edu/publications/lawjournal/state.html (last visited May 16,
2011).
2011 Americas Other Constitutions 837
page textbook,7 his treatise, State Constitutions for the Twentyfirst Century:
Drafting State Constitutions Revisions, and Amendments, cowritten with
Frank P. Grad,8 and dozens of law review articles. The book is organized
into five main parts: (I) State Constitutions in American Constitutional
Federalism; (II) Rights Guarantees under State Constitutions: The New
Judicial Federalism; (III) The Structure of State Government; (IV) Unique
Interpretation Issues in State Constitutional Law; and (V) State
ConstitutionalAmendmentandRevision.9Althougheachofthesesections
is somewhatselfcontained, they are united by Professor Williamss over
archingobjectiveofinformingusthatAmericansliveinasystemofdual
constitutionalism and that if we ignore the differences between the state
and federal constitutions, and their complementary relationships, we will
undermine the design of both the parts and the whole of the American
constitutionalsystem.10
Before delving into the substance of the particular sections, I would
like first to describe the writing. As reflected by the title of the book, the
prose is clear and unadorned. Professor Williams also has a fine eye and
earforquotation.Additionally,hisliberaluseofblockquotationsreflects,I
believe,thespiritofthebook,whichistopresentandencouragemultiple
descriptiveandprescriptiveperspectivesonstateconstitutionallaw.11By
the time you have finished the book, you will have come to appreciate
through their own wordsmany of thefine jurists and scholarsadvancing
state constitutional law. The bibliographical essay concluding the book
furthers this important purpose, directing us to the seminal works in the
fieldbyhistorians,politicalscientists,andlawprofessors,andtoimportant
electronicdatabasesaswell.12
I. StateConstitutionsinAmericanConstitutionalFederalism
In his introduction, Williams points out that at least until the recent
samesex marriage decisions most Americans and many lawyers were
unaware of their state constitutions.13 [C]lasses in public schools,
7SeeSTATECONSTITUTIONALLAW:CASESANDMATERIALS,supranote1.
8FRANK P. GRAD & ROBERT F. WILLIAMS, STATE CONSTITUTIONS FOR THE TWENTYFIRST
CENTURY: DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS (Robert J. Spitzer

ed.,2006).
9See generally ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS (2009)
(addressingtherelationshipbetweenstateandfederalconstitutionallaw).
10WILLIAMS,supranote9,at2.
11Seeid.at1(Thisbookdoesnotsuggestasingle,grandtheoryofinterpretationforstate
constitutions....).
12Seeid.at41115.
13Seeid.at6&n.28.
universities,andevenlawschoolsseldommentionedstateconstitutions.14
Longtime scholarly preoccupation with federal constitutional matters as
defined by the United States Supreme Court contributed to this lack of
knowledge.15Thiswastrueeventhough[m]ostAmericansdailylivesare
governedmuchmoredirectlybystateratherthanfederallaws,asenacted
(andlimited)pursuanttotheprovisionsofthe50stateconstitutions.16
In his first section, Williams describes the interrelationship between
stateandfederalconstitutionallaw.17Eachisadistinctforcewhichhelps
shape our national constitutional environment.18 Each is also an
interlocking,interdependentelementoftheother.19Togethertheyforman
interconnected whole.20 Built into this system are differing
responsibilities,dualprotectionsofindividualrights,andevenadutynot
only to monitor the behavior of the other, but actively to resist it when it
takesactionsthatthreatenpublicwelfare.21
Forthissystemtofunctionproperly,stateconstitutionscanbeneither
clones nor shadows of the Federal Constitution.22 As Williams
explains, state constitutions differ in origin, function, form, and quality
from the Federal Constitution.23 The earliest state constitutions trace their
origins back to the royal colonial charters.24 Regularly amended, the state
constitutionscontainlayersofprovisionsthatneedtobesiftedthroughlike
anarchaeologicaldig,asdifferentprovisionsreflectthemajorconcernsof
different eras in American history.25 These important constitutional
14Id.at2.
15Id.
17Seeid.at1536.
18Id.at18(citingLouisD.Bilionis,OntheSignificanceofConstitutionalSpirit,70N.C.L.REV.
1803,1805(1992)).
19Id.
20Seeid.at18.
21Id. (quoting JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE
OF FUNCTION IN A FEDERAL SYSTEM 18 (2005)). WilliamsreliesonProfessorJamesGardnerto

make this last point. Professor Gardner is one of the state constitutional law scholars who
makeregularappearancesinthebook.See,e.g.,id.at199.
22See WILLIAMS, supra note 9, at 20. Justice David Souter, when he served on the New
Hampshire Supreme Court, wrote: If we place too much reliance on federal precedent we
will render the state rules a mere row of shadows. Statev. Bradberry, 522 A.2d 1380, 1389
(N.H.1986)(Souter,J.,concurringspecially).
23WILLIAMS, supra note 9, at 20. Williams refers to qualities in the sense of distinguishing
characteristics.Seeid.
24Id.at15(quotingJAMESQUAYLEDEALEY,GROWTHOFAMERICANSTATECONSTITUTIONS11
(1915)).
25Seeid.at29.
moments, the Jacksonian, Progressive, and Civil Rights movements, to

name just a few, swept across the country bringing similar changes to
manystateconstitutionsatthesametime.26
Thefunctionsofthestateandfederalgovernment,andthereforetheir
respectiveconstitutions,arealsodifferent.AsJamesMadisonexplainedin
TheFederalistNumber45,thepowersofthenationalgovernmentsetoutin
the federal constitution are enumerated and limited.27 In contrast, the
powerswhicharetoremainintheStategovernmentsarenumerousand
indefinite.... [and] will extend to all the objects which, in the ordinary
course ofaffairs, concernthe lives, liberties, and properties of the people,
andtheinternalorder,improvement,andprosperityoftheState.28
Consequently,stateconstitutionscontainpolicyprovisionscoveringa
much wider range of subject matter, including education, corporate law,
andtheenvironment.29Thesepolicyorientedprovisionsalsomakestate
constitutions longer and less constitutional in the sense that they do not
just constitute a framework for government, which is the focus of the
federal constitution.30 The state constitutions are also filled with specific
limitations on the exercise of the otherwise virtually unlimited state
powers described by Madison.31 Of particular note are the requirements,
mostly procedural, imposed by state constitutions on state legislatures.32
NocomparablerestrictionshavebeenimposedonCongressbythefederal
constitution.33
Thestateandfederalconstitutionshaveotherimportantdistinguishing
qualities or characteristics. Professor Williams emphasizes, for example,
that [i]n a number of important ways, the state constitutions can be
considered more democratic than the federal Constitution.34 The state
constitutions involve the public much more directly in constitutional
decisionmaking through conventions, initiatives and referenda, recall
provisions, and the election of judges.35 State constitutions have also
historically expressly attempted to inculcate public virtue through a
variety of provisions including those directed at education, religion, and
26Seeid.
27THEFEDERALISTNO.45,at262(JamesMadison)(Am.BarAssned.2009).
28Id.
29SeeWILLIAMS,supranote9,at20.
30See id. at 23 & n.38 (citing G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 132
(1998)).
31Seeid.at28.
32Seeid.at27n.55.
33Id.at28.
34Id.at31.
vice.36
AcriticalfunctionofstateconstitutionsintheAmericanconstitutional
system has been to serve as laboratories for each other and the Federal
Constitution. Williams devotes much of his first section to proving this
important principle. He starts this discussion with John Adams and
Thomas Paine. Adams bragged: What is the Constitution of the United
States...butthatofMassachusetts,NewYorkandMaryland!Thereisnot
a feature of it which can not be found in one or the other.37 More
modestly, Thomas Paine extolled the happy opportunity of trying a
variety in order to discover the best.... By diversifying the several
constitutions, we shall see which States flourish the best, and out of the
manyposteritymaychooseamodel....38
Williams follows this exchange with an interesting comparison of
Pennsylvaniasdemocraticconstitution(unicamerallegislatureandweak
executive), with Massachusettss Constitution of 1780 (written by Adams
and incorporating his Thoughts on Government, including a bicameral
legislature, a stronger executive, and other checks and balances).39 He
further explains how Pennsylvanias Constitution ended up serving as a
negative model for the Framers of the Federal Constitution meeting in
Philadelphia,whileMassachusettsservedasapositiveone.40Lessfamiliar,
butjustasfascinating,isthespreadofconstitutionsupanddowntheeast
coast during the postrevolutionary period and then out west as the
country expanded. Williams perceptively summarizes the long and
continuing[] process of existing state constitutions providing models and
ideasforotherstatesconstitutions,41aprocessthatremainsaliveandwell
today.42 We even learn that the lineitem veto, now so prevalent in state
36Seeid. at 30. The Massachusetts Constitution is a good example: Wisdom and

knowledge, as well as virtue, diffused generally among the body of the people, being
necessary for the preservation of their rights and liberties; . . . it shall be the duty of the
legislatorsandmagistrates,inallfutureperiodsofthiscommonwealth,tocherishtheinterests
ofliteratureandthesciences,...tocountenanceandinculcatetheprinciplesofhumanityand
generalbenevolence....SeeMASS.CONST.pt.II,cl.5,2.
37STATE CONSTITUTIONAL LAW: CASES AND MATERIALS, supra note 1, at 37 (alterations in
original).
38Id.at3940(alterationsinoriginal).
39Seeid.at44,5859.
40See id. at 66. Much of this discussion was drawn from an earlier article he wrote. See
Robert F. Williams, The State Constitutions of the Founding Decade: Pennsylvanias Radical 1776
Constitution and Its Influences on American Constitutionalism, 62 TEMPLE L. REV. 541 (1989). As
Williams explains in his preface, a number of the chapters are drawn from his previously
publishedmaterials.WILLIAMS,supranote9,atxiii.
42Williamscorrectlynotes,citingtoG.AlanTarr,thatthismodelingprocesshasobvious
(butnotthefederal)constitutionsandtheenvyofeverysittingPresident,
was actually copied from the Constitution of the Confederate States of
America!43
In sum, Professor Williams establishes that state constitutions are
essentialtothedesignofAmericanconstitutionalism.Theymustalsobe
understood, evaluated, and utilized on their own terms and not through
the commonly unfavorable comparisons to the morefamiliar Federal
Constitution.44Finally,stateconstitutionsmustbestudiedcollectively,as
they have much in common in terms of history, function, form, and even
particularprovisions.45Theyaremorelikeeachotherthantheyarelikethe
FederalConstitution.46
II. RightsGuaranteesUnderStateConstitutions:TheNewJudicial
Federalism
In Part II of this book, Professor Williams addresses the new judicial

federalism;thatisthedevelopmentofstatecourtinterpretationsofsome
stateconstitutionalrightsprovisionstobemoreprotectivethanthesameor
similar [F]ederal Constitutional provisions as interpreted by the United
States Supreme Court.47 This development, jumpstarted in the 1970s, is
one of the most controversial and important questions in American
constitutional federalism.48 Given the dynamic relationship between state
and federal constitutional interpretation, particularly in times of federal
retrenchment,wecansurelyexpectthesecontroversiestocontinueduring
the Roberts Court era. In this Part, Professor Williams becomes more
prescriptivethandescriptive,displayinghisstrongviewsoncontemporary
practicesofthestatesupremecourtsandhowtheyshouldbecorrected.49
In 1972 in People v. Anderson, the California Supreme Court declared
thedeathpenaltyunconstitutionalunderitsstateconstitutionalprohibition
against cruel or unusual punishment.50 Other states soon followed,
implicationsforinterpretingstateconstitutionalprovisionscopiedfromotherstates.Id.at86.
For example, [i]n borrowing a provision from another constitution, does a state thereby
adoptthemeaningofthatprovision?Morespecifically,doesitendorsethemeaninggivento
theprovisionbytheoriginatingjurisdiction?G.AlanTarr,UnderstandingStateConstitutions,
65TEMPLEL.REV.1169,1191(1992).
44Id.at36.
45Seeid.at36,75.
46Seeid.at36,352.
47Id.at111.
48Seeid.at11314.
50Peoplev.Anderson,493P.2d880,883(Cal.1972).
including Massachusetts.51 Particularly in the area of criminal procedure,

statecourtlawyersandjudgessoonrecognizedthataU.S.SupremeCourt
decisionrulingagainstassertedfederalconstitutionalrightsdidnotresolve
thematterifchallengeswerealsobroughtundersimilarprovisionsofthe
stateconstitution.52JusticeBrennan,inhisfamous1977lawreviewarticle,
strongly encouraged the use of state constitutions to extend protections
beyond those provided by the Federal Constitution, as it was being
interpretedbyhisowncourtintheBurgerera.53
The new judicial federalism resulted in pitched battles among
advocatesandacademics,insidestatesupremecourts,andinthecourtsof
public opinion where initiative amendments were passed overturning
some of the decisions providing greater protections under state
constitutions.54 In California, for example, Proposition 115 sought to
preclude virtually all of the state constitutions criminal procedure
provisionsfrombeinginterpretedtoprovidegreaterprotectionthantheir
federalcounterpartsintheBillofRightsasinterpretedbytheU.S.Supreme
Court.55
Once the initialfuror subsided,a criteriaapproachwasdeveloped by
manystatesupremecourtsforinterpretingastateconstitutionalprovision
differently from how the U.S. Supreme Court interpreted a similar
provision of the Federal Constitution.56 Unless there were differences in
textorconstitutionalhistoryorthepresenceofuniquestatetraditions,the
U.S.SupremeCourtsinterpretationofananalogousfederalconstitutional
provisionwasusuallyadoptedbythestatesupremecourtsininterpreting
theirownstateconstitutions.57Thisdominantrelationalapproachdraws
51SeeDist.Attyv.Watson,441N.E.2d1274,128687(Mass.1980).
52See, e.g., Jones v. City of Phila., 890 A.2d 1188, 1193 (Pa. 2006) (holding that, when
interpreting analogous provisions in its state constitution, each state has the power to go
beyond the minimum levels of protection established by the federal constitution (quoting
Commonwealthv.Platov,312A.2d29,31n.2(Pa.1973))).
53See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
HARV.L.REV.489,491,502(1977).
54SeeRavenv.Deukemejian,801P.2d1077,1088(Cal.1990)(findinganamendmenttothe
CaliforniaConstitutionthatessentiallyvestedallinterpretivepowerofCalifornialawinthe
U.S.SupremeCourtunconstitutional,asitwasbeyondthescopeoftheinitiativeprocess).
55CAL. CONST.art.1,24(amended1990)(ThisConstitutionshallnotbeconstruedbythe
courtstoaffordgreaterrightstocriminaldefendantsthanthoseaffordedbytheConstitution
oftheUnitedStates....),invalidatedbyRaven,801P.2d1077.ContraCAL.CONST.art.1,24
(Rights guaranteed by this Constitution are not dependent on those guaranteed by the
UnitedStatesConstitution.).
56See Shirley A. Abrahamson, Criminal and State Constitutions: The Emergence of State
ConstitutionalLaw,63TEX.L.REV.1141,1170(1985).
57SeegenerallyJamesA.Gardner,TheFailedDiscourseofStateConstitutionalism,90MICH. L.
unusuallyharshcriticismfromtheusuallyjudiciousProfessorWilliams.58
TheoftenunstatedpremisethatU.S.Supreme[C]ourtinterpretations
of the federal Bill of Rights are presumptively correct for interpreting
analogous state provisions is simply wrong.59 This presumption is
incorrectbecauseitignorestheindependenceofstateconstitutionsandthe
purposesofdualconstitutionalismintheAmericanconstitutionalorder.60
ProfessorWilliamsconsidersthecriteriaapproachachallengetothe
legitimacyofindependentstateconstitutionalismitself.61Drawingonthe
articles and opinions of Oregon Supreme Court Justice Hans Linde, and
other influential scholars and jurists, Williams explains that the right
question is what the state constitutional provision means, not what the
Supreme Court says a comparable federal provision means.62 A truly
independent state constitutional interpretation is required.63 That
interpretation involves a consideration of state constitutional text,
constitutional history, and the lessons of federalism.64 Such an
interpretation does not, however, owe special deference to the U.S.
Supreme Courts interpretation of a comparable provision in the Federal
constitution.65 Decisions of the U.S. Supreme Court, Williams writes,
decliningtorecognizerightsundertheFederalConstitution(forexample,a
ruling that a particular search and seizure did not violate a defendants
rights under the Fourth Amendment) should not carry presumptive
validity in the interpretation of rights under analogous provisions of the
state constitution.66 Thisisespecially true when theU.S.Supreme Courts
decision reflects, in Justice Lindes words, a contemporary balance of
pragmatic considerations about which reasonable people may differ over
REV. 762, 77475 (1991) (describing two approaches to interpreting state constitutions the
primacyapproachandtheinterstitialapproach).
59Id.at135.
60Williams also alludes to the different institutional circumstances confronting the U.S.
SupremeCourtandstatesupremecourts.Id.at171.Inhistextbook,Williamsfleshesoutthese
institutional issues, explaining that the U.S. Supreme Court may be reluctant to enforce a
uniformnationalmandatetoadiversegroupofstategovernments.STATE CONSTITUTIONAL
LAW: CASES AND MATERIALS, supra note 1, at 169. He also includes articles by other scholars
explainingthatstatecourtsdonotsharetheseconcernsas(1)statecourtsarenotmakinglaw
for an entire nation; (2) the states, being diverse, have different needs; and (3) state judges
havespecialfamiliaritywithstateinstitutions.Id.at168.
62Seeid.at14041.
63Id.at144.
64Seeid.at185.
65Seeid.
66Id.at171.
timeandamongtheseveralstatesratherthaninsight[s]intotheorigins
ofprovisionscommontothestateandfederalbillsofrights.67
Williams contends that the presumption of validity undermines the
purposes of dual constitutionalism in which the state and federal
constitutions provide a double protection for individual rights, as well as
checksandbalancesoneachother.68Thepresumptionalsodiminishesthe
stateshistoricroleinconstitutionalexperimentation.Finally,itisbasedon
historical as well as logical fallacies: if John Adamss Massachusetts
Constitution preceded the Federal Constitution, and served in part as its
model, why should the Massachusetts Supreme Judicial Courts
interpretation of its own constitution be bound by the U.S. Supreme
Courts interpretation of a federal provision modeled on Massachusetts?
Anysuchdeferencearises,inthewordsofJusticeJohnPaulStevens,outof
amisplacedsenseofduty.69
Williams is not unaware of the practical and perhaps political
considerationsthathaveproducedthepresumptionofapplicabilityinstate
constitutionallawoftheU.S.SupremeCourtsinterpretationofanalogous
federalconstitutionalprovisions.70Herecognizesthatstatesupremecourts
donothavetheluxuryofacademicreflectionordoctrinalpurity.71Healso
understandsthatthejusticeswhositonstatesupremecourtshavewidely
differingviewsonconstitutionallawingeneralandthecontroversialand
importantsubstantivematterspresentedbynewjudicialfederalismcases.72
Whathemaynotfullyappreciate,however,istheextentoftheneedand
desire to avoid deciding novel, controversial questions of state
constitutionallawunnecessarily,particularlywherethelawisunclearand
undevelopedandsubjecttoconflictinginterpretationsbyexpertjuristsand
heatedreactionsfromthepublicatlarge.
Furthermore,asapracticalmatter,thestateconstitutionsarenottruly
independent from the Federal Constitution where the state and federal
constitutionscontainanalogousprovisionsandthefederalprovisionshave
been incorporated by the Fourteenth Amendment. For these provisions,
there is an inevitable relationship between the state and federal
67WILLIAMS,supranote9,at170(quotingStatev.Kennedy,666P.2d1316,1321(Or.1983).
68Id.at17071.
69Justice Stevens, as this book demonstrates, has been one of the most sophisticated
thinkers in regards to state constitutional law and a champion of its independence. See, e.g.,
Delawarev.VanArsdall,475U.S.673,699(1986)(Stevens,J.,dissenting);Michiganv.Long,
463U.S.1032,1071(1983)(Stevens,J.,dissenting);Massachusettsv.Upton,466U.S.727,735
36 (1983) (Stevens, J., concurring). His departure from the Supreme Court constitutes a real
intellectuallossintheareaofstateconstitutionallaw.
71Seeid.
72Seeid.
constitutions because the relevant federal constitutional provision

establishes a baseline standard that renders comparable state provisions
that have been interpreted to provide less protection as having no real
world effect.73 In these circumstances, the criteria approach, and the
presumption of applicability have understandable appeal despite the
doctrinaldifficultiesunraveledbyWilliams.74Whatmakesthispartofthe
booksovaluable,however,andwellworthreadingbythosejusticeswho
have developed and continued to apply the criteria approach, as well as
thelawyersarguingbeforethem,istheneedtoensurethattheapplication
of the U.S. Supreme Courts interpretation of the Federal Constitution to
analogousstateconstitutionalprovisionsisnotautomaticandunreflective,
butinformedby,andreflectiveof,theinsightsandconcernsofAmericas
dualconstitutionalism.75
III. TheStructureofStateGovernment
In Part III, Williams demonstrates that the state and federal

constitutions structure the three branches of government differently.76
Their separation of powers are also different.77 Consequently, so are the
constitutionalquestionsandconflictsthatarise.78
The federal constitutional conception of legislative, judicial, and
executive functions and their separation of powers have never been
incorporated into the state constitutions nor should they be, Williams
explains.79 The federal government does not set a baseline national
standard here.80 Therefore, federal constitutional preconceptions must be
approached with caution and particular state constitutional structures
studiedwithcare.81AsJusticeOliverWendellHolmes,Jr.,aveteranofboth
the Massachusetts Supreme Judicial Court and the U.S. Supreme Court
wrote,Weshallassumethatwhen,ashere,astateConstitutionseesfitto
unite legislative and judicial powers in a single hand, there is nothing to
73Seeid.at114.
74Seegenerallyid.at17071(discussingthecriteriaapproach).
75Seeid.at198.
77Id.at241.
78Seeid.at241,250.
79Id.at241.
80Id. That is not to say that federal due process violations may not result from improper
separationofpowers.See,e.g.,Tumeyv.Ohio,273U.S.510,51416(1927)(wheremayorofthe
village also sat as judge of those accused of violating alcoholic beverage law and received a
supplementtohissalaryforperformingjudicialdutiespaidfromthefinesheimposed).
hinder,sofarastheConstitutionoftheUnitedStatesisconcerned.82
Williams devotes particular attention to his explication of the
differences in legislative power.83 More so than either the executive or
judicial branches, the legislative branch is different at the state level from
the Congress at the federal level.84 Unless expressly restricted, state
legislative power is essentially plenary.85 Conversely, federal power is
enumerated.86
The result is that state constitutional law regarding the legislature
focuses on express and implied limitations of legislative power, while
federalconstitutionallawregardingCongressseekstoidentifyexpressand
implied powers.87 The state constitutional procedural and substantive
restrictionsatissuehavebeenproducedandpropelledbyhistoricwaves
of reaction to state legislative abuses, including the Yazoo land scandal
and failed public investments in private infrastructure projects after the
Erie Canal.88 Constitutional requirements that legislation serve a public
purpose,containatitledescribingitssubject,addressasinglesubject,and
be referred to committee, were passed during the Jacksonian era and
remaininplacetoday.89Theyseekgenerallytorequireamoreopenand
deliberativeprocess,onethataddressesthemeritsoflegislativeproposals
in an orderly and rational manner.90 Some state constitutions also place
limits on, or require supermajority votes for, important taxing and
spendingprovisions.91Theyareusuallyofmuchmorerecentvintageand
modeled on Proposition 13 in California.92 These procedural and
substantive limitations have no counterpart under the Federal
Constitution.93
The state judiciary likewise has different constitutional requirements
andresponsibilities.94Itisrequired,forexample,toenforcetheprocedural
82Prentisv.Atl.CoastLineCo.,211U.S.210,225(1908).
84Id.at249.
85Id.at249,253.
86Id.at249.Congress,ofcourse,alsohastheexpresspowertomakeallLawswhichshall
benecessaryandproperforcarryingintoExecutionitsenumeratedpowers.U.S. CONST.art.
1,8.
88Id.at251,258.
89Seeid.at25358.
90Id.at258.
91Id.at279.
92Seeid.
94Id.at28586.
andsubstantivelimitationsonthelegislaturejustdescribed.95Thatlevelof
involvementwiththelegislaturesinternaloperationshasthepotentialfor
significant constitutional conflict.96 Somewhat to Williamss dismay, the
state courts shy away from the enforcement of these restrictions.97 He
proposes an interesting right and remedy, contending that the state
constitutions have established for their citizens a due process of law
making that should be enforced by the state judiciary.98 When
fundamental elements of this constitutionally mandated process are
ignored and not remedied by the legislative or executive branches, the
courts should step in and examine reliable evidence of violations.99 This
does not mean that the drastic remedy of statutory invalidation is
regularly required for all legislative missteps. Rather deference is
appropriateforharmlesserror[s].100
The state courts also have different functions. Unlike the federal
judiciary, they have been empowered in a number of states to give
advisoryopinionsonconstitutionalquestionsraisedbytheotherbranches
of government.101 The idea was originated in the Massachusetts
Constitutionof1780.102Thisusuallyrequiresthegovernororthelegislature
tohaveseriousdoubtsastotheirpowerandauthoritytotakesuchaction,
undertheConstitution.103Advisoryopinionsarenotmeanttoaddressthe
legality of actions already taken.104 Separation of powers concerns,
however,havemadethisacomplexareaofstateconstitutionallaw.105
Williams also alludes to the great common law tradition of the state
courts as distinguishing them from their federal counterparts.106
Constitutional questions can be avoided through the creation of common
law remedies that may be overruled or refined by the legislature.107
Althoughnotdiscussedinthebook,agoodexampleofthisprocessisthe
evolutionoftheNewJerseySupremeCourtsrighttodiejurisprudence.In
the Quinlan case, the court relied on a state constitutional right to
95Seeid.at268,274,277.
96Id.at268.
97Id.at268,274,277.
98Id.at277.HedrawsagainontheworkofJusticeLindeforthisconcept.Id.
100Id.
101Id.at296.
102Id.at297.
103SeeAnsweroftheJustices,829N.E.2d1111,1113(Mass.2005).
104Seeid.at1114.
105Seeid.at1115.
107Seeid.at299300.
privacy.108 Later decisions shifted to a common law righttoinformed

consentrationale.109
Perhaps the greatest difference between the state and federal
judiciaries,however,isthatmorethaneightysevenpercentofstatejudges
facetheelectorateatsomepointintheirjudicialcareers.110Zeropercentof
federal judges, of course, have such a careerdefining experience.111 This
important feature of Jacksonian Democracy has become increasingly
controversial.112 Significant questions have been raised regarding whether
judicial elections, particularly in their current highly politicized form in
certainstates,haveunderminedjudicialindependenceandimpartiality.113
Excellent work has been done on this question by others, particularly the
Brennan Institute and the American Judicature Society.114 Retired Justice
Sandra Day OConnor has taken a leading role in the debate,115 and even
sat in on the oral argument in Caperton v. A.T. Massey Coal Co.,116 but the
issue is not the subject of much discussion here. This may be because
ProfessorWilliamsconsidersitmoreapolicyquestionthanalegalone,117
108SeeInreQuinlan,355A.2d647,66264(N.J.1976).
109See,e.g.,InreConroy,486A.2d1209,122122(N.J.1985).
111Seeid.
112See MARK KOZLOWSKI, BRENNAN CTR. FOR JUSTICE, THE MYTH OF THE IMPERIAL
JUDICIARY:WHYTHERIGHTISWRONGABOUTTHECOURTS214(2003);WILLIAMS,supranote9,at
290.
113SeegenerallyKOZLOWSKI,supranote112,at21116.
114See generally AM. JUDICATURE SOCY, JUDICIAL SELECTION IN THE STATES (2010),
http://www.judicialselection.us (offering a compendium of information and statistics on the

judicial election procedures of the fifty states); JAMES SAMPLE ET AL., THE NEW POLITICS OF
JUDICIAL ELECTIONS 20002009: DECADE OF CHANGE (Charles Hall ed. 2010), available at
http://www.scribd.com/doc/36072656/NewPoliticsofJudicialElections (identifying
contributionsbytheBrennanCenterforJusticeatNewYorkUniversitySchoolofLaw).
115See Wallace B. Jefferson, The State of the Judiciary in Texas, 72 TEX. B.J. 286, 288 (2009)
(quoting Justice Sandra Day OConnor) (If I could do one thing to protect judicial
independenceinthiscountry,itwouldbetoconvincethosestatesthatstillelecttheirjudges
to adopt a merit selection system . . . .); see also Joe Kimball, Retired Justice Sandra Day
OConnorSaysJudicialElectionsMustRemainFair,Unpoliticized,MINNPOST.COM(Feb.11,2010,
12:40 PM), http://www.minnpost.com/politicalagenda/2010/0211/15850/retired_justice_sandra
_day_oconnor_says_judicial_elections_must_remain_fair_unpoliticized;RyanJ.Reilly,Sandra
Day OConnors New Judgment: Judicial Campaign Reform Is Necessary,
TALKINGPOINTSMEMO.COM (Aug. 17, 2010, 2:43 PM), http://tpmmuckraker.talkingpoints
memo.com/2010/08/sandra_days_new_quest_state_judicial_reform.php.
116Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009); see OConnor Visits Her Old
Stomping Ground, DC DICTA (Mar. 3, 2009, 3:20 PM), http://lawyersusaonline.com/dcdicta/

2009/03/03/oconnorvisitsheroldstompingground.
117C.f. WILLIAMS, supra note 9, at 233 (discussing the lack of federal requirements for
structureofthebranchesofstategovernments).
but given judicial elections central importance and their state

constitutional origins, it would have been interesting to benefit from his
thoughts on the current state of judicial elections and their effect on state
constitutionallaw.
Iwasalsoleftwantingmoreonthestateexecutivebranch.Aslimsix
pagesaredevotedtotheexecutivebranchinthisPart,118ascontrastedwith
thirtyfour for the legislature119 and twentyseven for the judiciary.120
Maybe it is just my own bias, as a former counsel to a governor, but the
evolutionofthegovernorsconstitutionalpowersfromtheweakandpale
reflection...ofitsregalancestorincolonialtimestotodaysmuchmore
highlypoweredstateexecutiveisastoryworthtellinginmoredetail.121It
is perhaps no accident that four out of our last six Presidents are former
governors.122 The constitutional powers of the modernday governor
longer terms, multifaceted veto rights, control over extensive executive
brancheshaveallowedthemtoleadandgovernvigorously.AsWilliams
has written elsewhere, state governors have won many of the
administrativepowersoverbudgetsandbureaucraciesneededtoplanand
implementcoherentpoliciesinamodernsociety.123
IV. UniqueInterpretationIssuesinStateConstitutionalLaw
Professor Williams identifies a number of reasons why state

constitutionalinterpretationissuigeneris.124Unlikeitsfederalcounterpart,
stateconstitutionallawismorefluidandlessfixatedontheviewsofafew
framersfromcenturiespast.125Asaresult,stateconstitutionaltextcanand
mustbeinterpretedasamoredirectexpressionofthevoicesofthevoters,
speaking at different historical moments, and expressly amending their
views over time.126 This requires different interpretational techniques and
tools.
Text, history, and stare decisis are all of course important, but they
must be approached from a state constitutional perspective. There is a
strong preference for ordinary or plainmeaning interpretation.127 The
118Id.at30310.
119Id.at24781.
120Id.at283301.
121Id.at303.
122See Presidents, WHITEHOUSE.GOV, http://www.whitehouse.gov/about/presidents/ (last
visitedMay16,2011).
123STATECONSTITUTIONALLAW:CASESANDMATERIALS,supranote1,at16.
124WILLIAMS,supranote9,at20,356.
125Seeid.at32324.
126Id.at31517.
127Id.at316.
language in the state constitution is, in the words of the New Jersey
Supreme Court, to be interpreted as the voice of the people.128 [T]he
courts task [in state constitutional interpretation, as explained by the
Michigan Supreme Court] is to divine the common understanding of the
provision, that meaning which reasonable minds, the great mass of the
people themselves, would give it.129 Consequently, technical
interpretations,particularlyinthecontextofinitiativeamendments,areto
beavoided.130
Context nonetheless remains critical, if the language is ambiguous.131
Because resort to voters intent is completely foreign to federal
constitutionalinterpretation,thevarietyofevidencestatecourtslooktoin
interpreting state constitutional provisions is... quite unheard of in
federal constitutional interpretation.132 In addition to constitutional
conventiondebates,theaddresstothepeoplepreparedbytheconvention
mustbeconsidered.133Officialballotpamphletsandmaterialsalsoneedto
be analyzed.134 Even more unusual to those familiar only with federal
constitutionalinterpretationistheratherfrequentreferencebystatecourts
tonewspapercoverageoftheconstitutionalissuetobevotedon.135Proper
use of extralegal materials like newspapers is, however, the subject of
some dispute. Bias, geographical limitations, and other factors all need to
beconsidered.
Professor Williams also emphasizes the important role of state
constitutional history reflected in the constitutional convention debates
that have been recorded and collected and referenced here. They provide
treasuretrovesofinformationaboutcontestedprovisions.Asanexample,
Williams mentions the U.S. Supreme Court decision in Hunter v.
Underwood, where a historical review of a particular Alabama state
constitutional provision barring voting by persons convicted of crimes of
moralturpituderevealeditsactualunderlyingpurpose,whichwasracial
discrimination.136
The relative ease of amendment of state constitutions also raises
128Id.at315.
129Id.(internalquotationmarksomitted).
131See id. at 315; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); Brown v.
Gardner,513U.S.115,118(1994);Smithv.UnitedStates,508U.S.223,229(1993).
132WILLIAMS,supranote9,at31617;seealsoRobertA.Schapiro,IdentityandInterpretationin
StateConstitutionalLaw,84VA.L.REV.389,433(1998).
134Id.
135Id.
136Id.at31314;seeHunterv.Underwood,471U.S.222,22931(1985).
questions about whether stare decisis should be considered differently

under state and federal constitutional law.137 Williams relies on Justice
Brandeistostartadebateonthispoint.138InBurnettv.CoronadoOil&Gas
Co., Brandeis recommended a relaxed form of stare decisis under federal
constitutional law because Congress could not correct the courts
constitutional decisions and federal constitutional amendment was
exceedingly difficult.139 Brandeis continued, however: The policy of stare
decisis may be more appropriately applied to constitutional questions
arising under the fundamental laws of those States whose constitutions
maybeeasilyamended.140Williamsconsidersthisdifferencetobeafactor
instaredecisisanalysis,butheemphasizesthatitcannotbetheonlyfocal
point of analysis because state constitutions are still difficult to amend
andarethefundamentallawofthestate.Thestatejudiciarymustbeable
tocorrectitsownrecognizederrors.141
Anotherpeculiarityofstateconstitutionalinterpretationthatisrarely
ever raised in federal constitutional law is whether a clause is self
executing.142 A selfexecuting provision is one that is not dependent on
furtherlegislativeactionforitsenforcement.143Thisisnotanuncommonor
unimportant question given the breadth of subject matter considered by
stateconstitutions,theirinclusionofpolicypositionspasseddirectlybythe
people in response to powerful political forces, and the possibility that
these position statements may be undertaken without clear consideration
of conflicting financial constraints. The issue has been regularly raised in
response to social welfare, education, and environmental provisions.
AlthoughWilliamsonlyhastimeandspacetointroducetheissuehere,his
textbook contains informative reading on the subject, particularly the
Gettysburg Battlefield Tower case interpreting whether an environmental
provisioninthePennsylvaniaConstitutiontotheeffectthat[t]hepeople
havearighttocleanair,purewater,andtothepreservationofthenatural,
scenic, historic and esthetic values of the environment was self
executing.144
138Id.at34950.
139See
Burnett v. Coronado Oil & Gas Co., 285 U.S. 393, 40607 (1932) (Brandeis, J.,
dissenting);WILLIAMS,supranote9,at350.
140Burnett,285U.S.at409n.5.
142Id.at343(internalquotationsomitted).
143Id.
144Commonwealthv.NatlGettysburgBattlefieldTower,Inc.,311A.2d588,591(Pa.1973),
asreprintedinSTATECONSTITUTIONALLAW:CASESANDMATERIALS,supranote1,at40610.
V. StateConstitutionalAmendmentandRevision
Nowhereisthedifferencebetweenstateandfederalconstitutionallaw
more pronounced than in their respective capacities for amendment.
While there has only been one federal constitutional convention, as of
2005, there had been 233 state constitutional conventions, and the state
constitutions have been amended close to 6,000 times.145 The people,
through theinitiative process, can alsoamendstateconstitutionsdirectly,
whereas under the federal constitution, the people are at most indirectly
involved in constitutional change.146 When it comes to constitutional
change,wereallydohavedualconstitutionalism.147
In this Part, Professor Williams is again prescriptive as well as
descriptive in regard to the state constitutional amendment process. He
contrasts constitutional change from constitutional reform.148 He stresses
thatthereismorethanenoughchange,especiallythroughinitiatives,and
not enough reform. His argument is nicely summarized by a quotation
fromhiscolleagueandcollaboratorAlanTarrthatbeginsthediscussion:
More than twothirds of the states now operate under
constitutions that are more than a century old, that were
designed to meet the problems of another era, and that are
riddled with piecemeal amendments that have compromised
their coherence as plans of government. In addition, the public
disdainforgovernmentatalllevels,togetherwiththeincreasing
reliance on direct democracy for policy making in the states,
suggests a need for constitutional reforms designed to increase
the responsiveness of state institutions and to promote popular
involvement that does not preclude serious deliberation about
policyoptions.149
Williamsisclearlytroubledbyconstitutionalamendmentbyinitiative.
Attimeshisfrustrationshowsthrough:Afterall,despitethefactthatthe
initiative is democratic, these are constitutions that we are amending.150
Theinitiativeisflawedinhisviewbecausewhatitpossessesindemocratic
legitimacy it lacks in democratic deliberation.151 Quoting the scholars
GeraldBenjaminandThomasGais,hesays:
146Seeid.at38889.
147Id.at393.
148Id.at361.
149G. Alan Tarr, Introduction to 3 STATE CONSTITUTIONS FOR THE TWENTYFIRST CENTURY:
THE AGENDA OF STATE CONSTITUTIONAL REFORM 1, 34 (G. Alan Tarr & Robert F. Williams
eds.,2006),asreprintedinWILLIAMS,supranote9,at359.
151Id.at38889.
Whatweneedinsteadareconstitutionalrevisionproceduresthat
aredeliberativeaswellaslegitimateproceduresthatcommand
legitimacy by providing for direct citizen participation and
control, but that also generate and assess alternative proposals,
takeintoaccountthebestavailableinformationabouttheirlikely
effects, consider the interactions between the proposed changes
and the rest of the constitutional structure, and afford
opportunities for discussion and accommodation among
significantpoliticalinterests.152
He advocates for a greater use of constitutional commissions to

provide more professional insight and input into the modernization of
state constitutions.153 He also recommends that commissions, as well as
constitutional conventions, draw on twentyfirst century technology to
interactwiththepublic.
Widespread use of modern information technology such as
interactive Web sites; email; and live Internet video coverage
should be used to educate and involve the public in a
transparent,deliberativeconstitutionalrevisionprocess.Modern
public opinion polling and focus group techniques can be used
duringdeliberationstopredictthepoliticalacceptanceofcertain
proposed constitutional changes and to inform constitution
makers of needed modifications prior to adoption and
submissionoffinalproposalstothevoters.154
Intheend,ProfessorWilliamsisrealistic.Herecognizesthatthepublic
isnotlikelytochangestateconstitutionstomodifyeithertheprocessesfor
the state constitutional initiative or the substances of state constitutional
changethatcanbeaccomplishedthroughtheinitiativeratherthanthrough
the other avenues of state constitutional change.155 It is also worth
emphasizing that this democratic right, created in the Progressive Era to
allow citizens to bypass recalcitrant public officials on matters of great
concern to them, has important virtues as well as vices.156 In combination
with Professor Williamss own proposals regarding commissions and
conventions,whichwillallowforamoredeliberateandinformedprocess
for constitutional revision, and in the context of American
152Id.at389.
153Id.at381.
154Id.at278.
155Id.at391.
156WILLIAMS,supranote9,at280.Inorderforthefederalconstitutionaldialoguetowork,
itsdebateoverrightsmustincludethevoicesofpeople.Oneofthegreatcontributionsofstate
constitutionstooursystemistheplacetheyprovideforthesevoices.HarryL.Witte,Rights,
Revolution, and the Paradox of Constitutionalism: The Processes of Constitutional Change in
Pennsylvania,3WIDENER J. PUB. L.383,475(1993),asreprintedinSTATE CONSTITUTIONAL LAW:
CASESANDMATERIALS,supranote1,at263.
constitutionalism, where there are federal protections of individual rights

fromstatemajoritarianexcesses,theinitiativeshouldbeableovertimeto
serve valuable constitutional purposes. Regardless, the initiative
amendmentisheretostay.
CONCLUSION
Carved out of his colossal scholarship on state constitutional law,

Professor Williamss new book neatly encapsulates the field. Also, his
exposition of the differences between the state and federal constitutions
and the dual constitutional design of American government could not be
more timely. As the Roberts Court, which has been described recently as
one of the most conservative in American history,157 transforms federal
constitutional law, we can expect a dynamic reaction from the states. For
the courts, the constitutional bar, and the citizens and public officials
readyingthemselvesforthisuncertainfuture,thereisnobetterpreparation
thanreadingTheLawofAmericanStateConstitutions.

157SeeAdamLiptak,TheMostConservativeCourtinDecades,N.Y.TIMES,Jul.25,2010,atA1.

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835854_KAFKER_FINAL.

American constitutional law is primarily examined through a single

836 NewEnglandLawReview v.45|835

2011 Americas Other Constitutions 837

CENTURY: DRAFTING STATE CONSTITUTIONS, REVISIONS, AND AMENDMENTS (Robert J. Spitzer

838 NewEnglandLawReview v.45|835

21Id. (quoting JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE

OF FUNCTION IN A FEDERAL SYSTEM 18 (2005)). WilliamsreliesonProfessorJamesGardnerto

2011 Americas Other Constitutions 839

moments, the Jacksonian, Progressive, and Civil Rights movements, to

840 NewEnglandLawReview v.45|835

36Seeid. at 30. The Massachusetts Constitution is a good example: Wisdom and

2011 Americas Other Constitutions 841

In Part II of this book, Professor Williams addresses the new judicial

842 NewEnglandLawReview v.45|835

including Massachusetts.51 Particularly in the area of criminal procedure,

2011 Americas Other Constitutions 843

844 NewEnglandLawReview v.45|835

2011 Americas Other Constitutions 845

constitutions because the relevant federal constitutional provision

In Part III, Williams demonstrates that the state and federal

846 NewEnglandLawReview v.45|835

2011 Americas Other Constitutions 847

848 NewEnglandLawReview v.45|835

privacy.108 Later decisions shifted to a common law righttoinformed

http://www.judicialselection.us (offering a compendium of information and statistics on the

Stomping Ground, DC DICTA (Mar. 3, 2009, 3:20 PM), http://lawyersusaonline.com/dcdicta/

2011 Americas Other Constitutions 849

but given judicial elections central importance and their state

Professor Williams identifies a number of reasons why state

122See Presidents, WHITEHOUSE.GOV, http://www.whitehouse.gov/about/presidents/ (last

850 NewEnglandLawReview v.45|835

2011 Americas Other Constitutions 851

questions about whether stare decisis should be considered differently

852 NewEnglandLawReview v.45|835

2011 Americas Other Constitutions 853

He advocates for a greater use of constitutional commissions to

854 NewEnglandLawReview v.45|835

constitutionalism, where there are federal protections of individual rights

Carved out of his colossal scholarship on state constitutional law,

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