The Law of American State Constitutions.

• Author: Rossi, Jim
• Position: Book review

THE LAW OF AMERICAN STATE CONSTITUTIONS. By Robert F. Williams. Oxford and New York: Oxford University Press. 2009. Pp. xv, 433. $95.

Robert Williams's The Law of American State Constitutions (1) is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. (2) More than any other legal academic, Williams has advanced the view--in this book and elsewhere--that the unique nature of state constitutions requires an appreciation of the text, legal community, and interpretive norms of the specific jurisdiction engaging in the interpretation.

State constitutions are very important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. Williams's descriptive account of state constitutions is very informative and lawyerly; his book fills a notable void to the extent it synthesizes many important features and doctrines of state constitutional law, grounding them in historical context. It is the most significant account of modem state constitutions to date, and his book exhaustively surveys a wide range of the issues state courts have struggled with in interpreting their constitutions.

While the publication of Williams's book represents an important step forward for the field of state constitutional law (what serious area of American law lacks a good national treatise?), this area of scholarship remains underdeveloped. Basic issues remain ripe for exploration by scholars, such as how state constitutions should be interpreted, how new constitutional rights evolve, and how state constitutional protections interact with federal rights and regulatory programs. With many important topics continuing to lack serious analytical study, the field has many opportunities for advancement. However, it is unlikely to take major strides forward as an academic field until lawyers begin to seriously approach state constitutions with an eye toward federalism concerns and with a normative understanding of state power. Scholars must also begin to engage with how variations and similarities across various states are informed and influenced by institutional variables other than text and interpretive style. Legal scholars need to begin paying as much attention to the various features of the "state" of state constitutionalism as they do to its legal sources, such as its constitutional text and history.

Part I of this Review briefly summarizes Williams's book. In Part II, I discuss the normative significance of Williams's book, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. Part III highlights some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within federalism and engages in serious institutional analysis.

1. A TREATISE IN FIVE PARTS

   Williams's book presents a superb treatise-like survey of the substantive legal issues presented by state constitutions. The five-part structure of the book maps nicely onto his widely used casebook on state constitutions, and thus the book is likely to serve some use as an advanced treatise for those who wish to have a more in-depth treatment of specific issues.

   The first part of the book examines the historical origins of state constitutions and their role in American federalism. As Williams highlights in Chapter One, state constitutions are unique legal documents in many respects. They are far more detailed than the U.S. Constitution, particularly with respect to their rights provisions (p. 16). They are "subnational" and thus operate within a system of American federalism based on imperium in imperio (empire within an empire). (3) This is also true of all state statutes and many other features of state law. But state constitutions reflect far more significant political commitments than do ordinary statutes, defining basic rights available within states and the allocation of powers within state government.

   Williams's overview of the legal issues provides a solid and accessible historical introduction to state constitutions and their role in American constitutionalism more generally. (4) As many as eighteen to twenty early state constitutions--including those of Massachusetts, New York, and Maryland--provided a rich palette for drafters of the U.S. Constitution during the founding decade of 1776-1787 (pp. 37-39). Many of the ideas in the U.S. Constitution, including fundamental issues of governmental structure and individual rights, were not original but were themselves borrowed from the colonies. (5) Williams emphasizes that the early subnational constitutions of the colonies were focused primarily on issues of the structure of government; only later did they expand into documents that placed rights at the forefront (p. 41).

   Williams also surveys the rich variation of early state constitutions. The first wave of state constitutional adoption included the Pennsylvania Constitution of 1776 (p. 43), which vested legislative powers in a unicameral assembly, mimicking Thomas Paine's notorious (if somewhat infamous) call in Common Sense for a simple government of a unicameral legislature and a wide elected franchise. (6) The second wave of state constitutional adoption is best exemplified by the Massachusetts Constitution of 1780 (p. 58), which established an elected governor (with no limit on reelection), Senate, and council of government that can veto bills. Adopting a similar approach, New York's 1777 constitution "provided a model based on the blending of governmental powers that appealed to many of those who opposed the Pennsylvania Constitution" (p. 56). This second-wave approach may have proved more influential to the U.S. Constitution, given that it (and eventually most states, including Pennsylvania) ultimately rejected a unicameral legislative model.

   The lessons from Williams's survey of the history of forgotten state constitutions are important to understanding features of modem state constitutions. For example, in contrast to the U.S. Constitution, which enumerates legislative powers, the prevailing view among state constitutions is that the basic sovereign power of the state is held by the legislature.7 This vesting of plenary power in a state legislature (p. 249), rather than enumerating specific powers, seems to have had its origins in the "almost ... forgotten" (p. 71) 1776 Pennsylvania Constitution. Williams reminds us why historical state constitutional origins should not be ignored by modem legal academics and practitioners.

   As Williams emphasizes in Chapter Four, state constitutions are not only integral to a proper understanding of the U.S. Constitution, they are also subordinate to it. Under the Supremacy Clause, (8) federal laws can limit the content of state constitutions. Despite this, state constitutions continue to play a major role in expanding the interpretation of constitutional rights.

   The entirety of part II, spanning more than 120 pages of Williams's book, is focused on rights guaranteed by state constitutions. While state constitutions are fairly expansive in these guarantees, much of state constitutional-fights adjudication focuses on whether state courts should follow or diverge from federal constitutional doctrine. (9) The "New Judicial Federalism," advanced by Justice Brennan in the 1970s, was a rediscovery of state constitutional-rights protections. (10) This movement was sparked by an expansion in constitutional-rights litigation in the 1960s. Although it is questionable that the use of state constitutions to recognize rights is really "new," (11) Williams's survey provides a strong overview of this twentieth-century development, especially in the context of criminal procedure cases (pp. 178-87, 201-05), free speech and religion protection cases (pp. 182-83, 200-01), and equality protections (pp. 209-24). Recent state same-sex marriage cases (12) are not discussed at length, despite Williams's acknowledgement that these decisions "thrust the field of state constitutional law onto the national stage in a way that had never happened before" (p. 6). It is odd that these landmark cases receive only passing mention and little discussion in the section on constitutional-rights adjudication (pp. 162, 220) and are not really analyzed for more than a sentence or two elsewhere in the book.

   In part III, Williams discusses structure-of-government issues. This part is only two-thirds of the length of his discussion of rights provisions. However, the mere fact that Williams has devoted even this much of his book to topics concerning separation of powers is significant. The bulk of scholarship addressing state constitutions has focused heavily on constitutional-rights adjudication as the model for state constitutional discourse, (13) and, given how "new" and innovative Justice Brennan declared the phenomenon to be, (14) this is not surprising. But Williams's book begins to make a case for returning the analysis of the structure of government to the imminence in state constitutional law conversations that it has been afforded in discussions about the U.S. Constitution--which frequently view structural issues as informing the enforcement and development of constitutional rights. The historical predicates for this, Williams highlights, can be traced to the...