State Constitutional Law: The Modern Experience

In the fifth edition of State Constitutional Law: The Modern Experience, the authors, Jeffrey Sutton and Stephen McAllister, present cases, articles, and other materials about our intensely democratic, ever evolving, and increasingly salient state charters of government. This edition contains a new section on Positive Rights, which addresses a unique feature of state constitutions—that they sometimes impose affirmative obligations on state legislatures. In addition, this edition contains four new chapters: (1) Environmental Protection; (2) the Legislative Power; (3) the Executive Power; and (4) the Judicial Power. 

The casebook starts by placing state constitutions in context—in the context of a federal system that leaves some powers exclusively with the States, delegates some powers exclusively to the Federal Government, and permits overlapping authority by both sovereigns in many areas. The resulting combination of state and federal charters—what should be called American Constitutional Law—presents fruitful opportunities for give and take, for exporting and importing constitutional insights between our different sovereigns. Federalism, as it happens, is a question, not an answer. And the casebook offers a range of local answers given by our fifty States as well as a range of ways in which the national and state governments have worked together to answer difficult legal and policy dilemmas. 

The casebook often addresses this interaction by explaining how the U.S. Constitution deals with an issue before discussing how the state constitutions handle an identical or similar issue. At other times, the casebook explains how the state constitutions contain provisions that have no parallel in the U.S. Constitution. A central theme of the book, explored in the context of a variety of constitutional guarantees, is that state constitutions provide a bountiful source of rights independent of the federal constitution—and a potential source of data before the U.S. Supreme Court decides to nationalize or denationalize a right under the U.S. Constitution. Considerable space also is devoted to the reasons why a state court might construe the liberty and property rights found in its constitution more or less broadly than comparable rights found in the U.S. Constitution. Among the reasons considered: differences in the text and history of the state and federal guarantees, the smaller scope of the state courts’ jurisdiction, state constitutional history, unique state traditions and customs, elections of state court judges (and the possibility that this makes them less likely to “lockstep” with their federal brothers and sisters), and disagreement with the U.S. Supreme Court’s interpretation of similar language, whether due to push back with respect to a federal doctrine in a given area (say tiers of review) or push back with respect to a method of interpretation used by the federal court in a given area (say originalism or living constitutionalism). 

The challenges underlying the design of a fair system of political representation offer one example of this interplay. Ever since the U.S. Supreme Court decided in Rucho v. Common Cause (2019) that gerrymandering claims are not justiciable under the Fourteenth Amendment, the States have become intense laboratories of reform in this area. In the short time since Rucho, the States have seen plenty of state court debates about the meaning of a wide variety of state constitutional guarantees, generating a rich set of decisions about these vexing issues. 

State constitutional law, like its federal counterpart, is not confined to individual rights. Structure matters too—often more so. The casebook explores the organization and structure of state and local governments, the methods of choosing state judges, the many executive-branch powers found in state constitutions but not in their federal counterpart, the plural election of many state executive officials, the ease with which the people may amend their state constitutions, the use of initiatives, and other topics, such as taxation, public finance and school funding. Bringing many of these topics together is a chapter on Administrative Law, where the comparison between federal and state law is striking. In many ways, the state courts have been the leaders in dealing with difficult issues related to the delegation of legislative powers (or not) and deference to administrative agencies (or not). 

Much of American government turns on what should be national and what should be local. The local side of the equation includes not just state governments but cities, counties, and townships too. In America circa 2026, these local governments have become a third source of governmental innovation, a form of federalism within federalism, and a bountiful source of debates about the meaning of Home Rule guarantees in most state constitutions. A chapter on Local Governments opens a fresh vista on these truly local division-of-power debates. 

The casebook is not parochial. It looks at these issues through the lens of impressive state court decisions from nearly every one of our 50 States. In that sense, it is designed for a survey course, one that does not purport to cover any one State’s constitution in detail but that considers the kinds of provisions found in many state charters. At the same time, we urge students to engage with one or two state constitutions of their choice. As an example, we devote the first ten minutes of each class to reports from individual students about potentially useful or exotic provisions found in the constitution of their home State or a State of interest. In this way, the students can drill down on one constitution at the same time they learn about many. Like a contracts, real property, or torts textbook, this casebook uses the most interesting state court decisions from around the country to illustrate the astonishing array of state constitutional issues at play in American Constitutional Law. 

It is difficult to overstate the growing significance of state constitutional law. One wonders if the Wall Street Journal and New York Times have written more articles about state courts and state constitutions in the last decade than they have written in their entire 100-plus year histories. There is a method to their coverage. Many of the ground-breaking constitutional debates of the day are being aired in the state courts under their own constitutions—often as a prelude to debates about whether to nationalize this or that right under the National Constitution. To use a recent example, it is doubtful that there would have been a national right to marriage equality in 2015, see Obergefell v. Hodges, without the establishment of a Massachusetts right to marry in 2003, see Goodridge v. Department of Public Health. The same is true in other areas of constitutional litigation, whether it is gerrymandering, right to bear arms, capital punishment, property, licensing, school funding, or free exercise claims. More recently, the U.S. Supreme Court’s 2022 decision to overrule Roe and Casey in Dobbs v. Jackson Women’s Health Organization placed a spotlight on the States when it comes to legislative or constitutional protections related to abortion. Before and after Dobbs, some States have sought to amend their constitutions to protect abortion rights, and others have responded with state court decisions in the area, some recognizing such rights under state due process and right to privacy provisions, others rejecting such claims. In these areas, and many more, the state courts often have been the first responders and the key innovators, invoking their own constitutions to address pressing individual rights and structural debates. The mission of the casebook is to introduce students to this increasingly significant body of law and to prepare them to be fully equipped, as opposed to half equipped, to represent clients involved in American Constitutional Law cases of the twenty-first century.

Imprint: West Academic Publishing
Series: American Casebook Series
Publication Date: 10/06/2025
Related Subject(s): State Practice And Procedure