In this, the third edition of State Constitutional Law: The Modern Experience, the authors present cases, articles, and other materials, including a new chapter on Administrative Law, about our still-evolving, ever-more-relevant state charters of government. 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.

The casebook often addresses the point 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 rich source of rights independent of the federal constitution—and a potential source of data before the U.S. Supreme Court decides to nationalize 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 state’s constitutions more broadly than comparable rights found in the U.S. Constitution. Among the reasons considered are: 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, and disagreement with the U.S. Supreme Court’s interpretation of similar language.

State constitutional law, like its federal counterpart, is not confined to individual rights. Structure matters too. The casebook also 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 ease with which most state constitutions can be amended, and other topics, such as taxation, public finance and school funding. For the first time, the casebook offers a chapter on Administrative Law. 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). The casebook is not parochial. It looks at these issues through the lens of important 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. Like a traditional contracts, real property, or torts textbook, the 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. 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, gun rights, capital punishment, property rights, school funding, or free exercise 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 individual rights and structural debates of the twenty-first century. The mission of the casebook is to introduce students to this increasingly significant body of American law and to prepare them to practice effectively in it.


Imprint: West Academic Publishing
Series: American Casebook Series
Publication Date: 10/28/2019

Jeffrey S. Sutton, Ohio State University College of Law

Randy J. Holland, Widener University School of Law - Wilmington

Stephen R. McAllister, University of Kansas School of Law

Jeffrey M. Shaman, DePaul University College of Law

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Chapter I – Introduction

Deleted Cases:

None.

Chapter II - Dual Sovereignty

Deleted Cases:

  • Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014), 106
  • Wyoming v. Oklahoma, 502 U.S. 437 (1992), 32
  • National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012), 21

Added Cases:
  • City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), 8
  • Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277 (2016), 44, 52
  • Murphy v. NCAA, 138 S. Ct. 1461 (2018), 43
  • Seminole Trible of Fla. v. Florida, 517 U.S. 44 (1996), 44, 45
  • Timbs v. Indiana, 139 S. Ct. 682 (2019), 34

Chapter III – Theories by Which State Courts may Construe State Constitutions

Deleted Cases:

None.

Added Cases:
  • State v. Scottize Danyelle Brown, 930 N.W.2d 840 (Iowa 2019), 114

Chapter IV – Equality

Deleted Cases:
  • League of Women Voters of Indiana v. Rokita, 929 N.E.2d 758 (Ind. 2010), 226
  • O’Neill v. Bane, 568 S.W.2d 761 (Mo. 1978), 189
  • Southwest Washington Chapter, National Electric Contractors Association v. Pierce County, 667 P.2d 1092 (Wash. 1983), 182
  • State v. Afana, 233 P.2d 879 (Wash. 2010), 456

Added Cases:
  • AFSCME Iowa Council 61 v. State, 928 N.W.2d 21 (Iowa 2019), 202
  • Crawford v. Marion County Election Board, 553 U.S. 181 (2008), 222
  • Davis v. Bandemer, 478 U.S. 109 (1986), 234
  • Driscoll v. Corbett, 69 A.3d 197, (Pa. 2013), 160
  • Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335 (Iowa 2013), 180
  • Giddings v. Blacker, 52 N.W. 944, 948 (Mich. 1892), 235
  • Gill v. Whitford, 138 S. Ct. 1916 (2018), 234
  • League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 126 S. Ct. 2594 (2006), 234
  • League of Women Voters of Fla. v. Detzner, 172 So.3d 363 (Fla. 2015), 235
  • League of Women Voters of Pennsylvania v. Pennsylvania, 178 A.3d 737 (Pa. 2018), 3, 223, 234
  • Rucho v. Common Cause, 139 S. Ct. 2484 (2019), 3, 234
  • Tully v. City of Wilmington, 810 S.E.2d 208 (N.C. 2018), 197, 709
  • T.J.S., In re, 54 A.3d 263 (N.J. 2012) 160
  • Vieth v. Jubelirer, 541 U.S. 267 (2004), 79, 234

Chapter V - Due Process of Law

Deleted Cases:
  • People v. Washington, 665 N.E.2d 1330 (Ill. 1996), 330
  • Planned Parenthood v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), 250

Added Cases:
  • Burns v. Cline, 382 P.3d 1048 (Okla. 2016), 265, 721
  • Hodes & Nauser, MDS, P.A. v. Schmidt, 440 P.3d 461 (Kan. 2019), 251

Chapter VI - Criminal Procedure

Deleted Cases:
  • Bryan v. State, 571 A.2d 170 (Del. 1990), 365
  • Capano v. State, 889 A.2d 968 (Del. 2006), 347
  • Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014), 359
  • Maymi v. State, 585 A.2d 1278 (Del. 1991), 337
  • Richardson v. State, 717 N.E.2d 32 (Ind. 1999), 384

Added Cases:
  • Brown v. Booker, 826 S.E.2d 304 (Va. 2019), 388
  • Elliot v. Georgia, 824 S.E.2d 265 (2019), 357
  • Ex parte Tucci, 859 S.W.2d 1 (Tex. 1993), 359
  • Malyon v. Pierce County, 935 P.2d 1272 (Wash. 1997), 359
  • Miller v. Alabama, 567 U.S. 460 (2012), 387
  • Moran v. Burbine, 475 U.S. 412 (1986), 366
  • Olevik v. State, 806 S.E.2d 505 (Ga. 2017), 357
  • People v. Aranda, 437 P.3d 845 (Cal. 2019), 377
  • State v. Horwitz, 191 So.3d 429 (2016), 356
  • State v. McAdams, 193 So.3d 824 (Fla. 2016), 362
  • State v. Tsujimura, 400 P.3d 500, 314 (Haw. 2017), 357
  • State v. Walker, 267 P.3d 210 (Utah 2011), 359
  • Washington v. Gregory, 427 P.3d 621 (Wash. 2018), 353

Chapter VII - Search and Seizure

Deleted Cases:
  • Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), 404
  • State v. Afana, 233 P.2d 879 (Wash. 2010), 456
  • State v. Kuykendall, 136 P.3d 983 (Mont. 2006), 407

Added Cases:
  • Commonwealth v. Johnson, 86 A.3d 182 (2014), 419
  • Michigan v. Goldston, 682 N.W.2d 479 (Mich. 2004), 418
  • Pierce v. State, 171 P.3d 525 (Wyo. 2007), 447
  • State v. Birchard, 5 A.3d 879 (Vt. 2010), 447
  • State v. Cora, 167 A.3d 633 (N.H. 2017), 443
  • State v. Dupuis, 197 A.3d 343 (Vt. 2018), 436
  • State v. Harrington, 222 P.3d 92 222 P.3d 92 (Wash. 2009), 442
  • State v. Knapp, 700 N.W.2d 899 (Wis. 2005), 452, 453
  • State v. Lien, 441 P.3d 185 (Or. 2019), 436
  • State v. McCormick, 494 S.W.3d 673 (Tenn. 2016) 442
  • State v. Snapp, 275 P.3d 289 (Wash. 2012), 447
  • State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), 394
  • State v. Vondehn, 236 P.3d 691 (Or. 2010), 453

Chapter VIII - Property Rights

Deleted Cases:
  • Nevadans for the Protection of Property Rights, et al. v. Heller, 122 Nev. 894 (2006), 505
  • Reading Area Water Authority v. Schuykill River Greenway Ass’n, 100 A.3d 572 (Penn. 2014),
  • Utah Dept. of Transportation v. Carlson, 332 P.3d 900 (Utah 2014), 500

Added Cases:
  • Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019), 479
  • Williamson Cty. Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), 479

Chapter IX – Religion Clauses

Deleted Cases:
  • California Statewide Cmty. Dev. Auth. v. All Pers. Interested in the Matter of the Validity of a Purchase Agreement, 152 P.3d 1070 (Cal. 2007), 579

Added Cases:
  • Caplan v. Town of Acton, 92 N.E.3d 691 (Mass. 2018), 519
  • Freedom From Religion Found. v. Morris Cty. Bd. of Chosen Freeholders, 181 A.3d 992 (N.J. 2018) 519, 522
  • Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018), 529, 547
  • Moses v. Ruszkowski, ___ P.3d ___ (N.M. 2018), 546
  • Taylor v. Town of Cabot, 178 A.3d 313 (Vt. 2017), 519, 526
  • Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), 117, 519, 546

Chapter X - School Funding

Deleted Cases:
  • State v. Lewis, 99 Ohio St. 97 (2003), 609

Added Cases:
  • Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 262 So.3d 127 (Fla. 2019), 581
  • Davids v. New York, 159 74 N.Y.S.3d 228 (N.Y. App. Div. 2018), 590
  • Forslund v. Minnesota, 924 N.W.2d 25, (Minn. Ct. FinstadApp. 2019), 590
  • Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280 (W.D. Tex. 1971), 553
  • Vergara v. California, 209 Cal. Rptr. 3d 558 (2016), 590
  • William Penn Sch. Dist. v. Pa. Dep’t Educ., 170 A.3d 414 (Pa. 2017), 585

Chapter XI - Right to a Remedy / Open Courts

Deleted Cases:
  • Ruther v. Kaiser, 983 N.E.2d 291 (Ohio 2012), 658
  • Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Ore. 2001), 638

Added Cases:
  • Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018), 611

Chapter XII - Other State Individual Rights

Deleted Cases:
  • Colonial Pipeline Co. v. Brown, 365 S.E.2d 827 (Ga. 1988), 735
  • Finstad v. W.R. Grace & Co., 8 P.3d 778 (Mont. 2000), 742
  • Schilling v. Crime Victims Rights Board, 692 N.W.2d 623 (Wis. 2005), 743
  • Smith v. Printup, 866 P.2d 985 (Kan. 1993), 742
  • Standidge v. Chicago Rys. Co., 98 N.E. 963 (Ill. 1912), 723

Added Cases:
  • Cabot v. Thomas, 514 A.2d 1034 (Vt. 1986), 702
  • Glisson v. City of Marion, 720 N.E.2d 1034 (1999), 964
  • Hilburn v. Enerpipe Ltd., 442 P.3d 509 (Kan. 2019), 675
  • Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 988 P.2d 1236 (Mont. 1999) 694
  • Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017), 689
  • State v. Damato-Kushel, 173 A.3d 357 (Conn. 2017), 697
  • State v. Strom, 921 N.W.2d 660 (N.D. 2019), 695

Chapter XIII - State Constitutional Provisions with No Federal Counterparts

Deleted Cases:
  • Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), 742
  • Hoffman v. Reagan, 429 P.3d 70 (2018), 724
  • McIntire v. Forbes, 909 P.2d 846 (Or. 1996), 761
  • Secretary of State v. Burk, 188 P.3d 1112 (Nev. 2008), 818
  • Topeka Cemetery Assoc. v. Schnellbacher, 542 P.2d 278 (Kan. 1975), 808

Added Cases:
  • Burns v. Cline, 382 P.3d 1048 (Okla. 2016), 265, 721
  • Citizens Arizona Chamber of Commerce & Indus. v. Kiley, 399 P.3d 80 (2017), 724

Chapter XIV - Organization of State Governments

Deleted Cases:
  • Bettigole v. Assessors of Springfield, 178 N.E.2d 10 (Mass 1961), 805
  • B.H. v. State, 645 So.2d 987 (Fla. 1994), 852
  • Lorton v. Jones, 322 P.3d 1051 (Nev. 2014), 831
  • Raines v. Byrd, 521 U.S. 811 (1997), 847

Added Cases:

None.

Chapter XV - Administrative Law

Entirely new chapter.

New Cases:
  • Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1978), 848
  • Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), 866, 880
  • Guillou v. Div. of Motor Vehicles, 503 A.2d 838 (N.H. 1986), 853
  • Gundy v. United States, 139 S. Ct. 2116 (2019), 842
  • King v. Miss. Military Dep't, 245 So.3d 404 (Miss. 2018), 875
  • McNeill v. State, 375 P.3d 1022 (Nev. 2016), 846
  • N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 16 N.E.3d 538 (N.Y. 2014), 860
  • Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), 838
  • Public Water Supply Co., Inc. v. DiPasquale, 735 A.2d 378 (Del. 1999), 877
  • Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997), 854

Chapter XVI (formerly Chapter XV) - Amendment and Revision of State Constitutions

Deleted Cases:
  • Opinion of the Justices, 264 A.2d 342 (Del. 1970), 975
  • Truax v. Corrigan, 257 U.S. 312 (1921), 942

Added Cases:
  • Citizens Protecting Michigan’s Constitution v. Secretary of State, 503 Mich. 42 (2018), 899
  • Save Our Vote v. Bennett, 291 P.3d 342 (Ariz. 2013), 909
  • State ex rel. Voters First v. Ohio Ballot Board, 978 N.E.2d 119 (Ohio 2012), 904

Chapter XVII (formerly Chapter XVI) - The Framing of State Constitutions and Their History

Deleted Cases:

None.

Added Cases:

None.

Learn more about this series.