Why Teach -- And Why Study -- State Constitutional Law

Abstract

Imagine an NCAA tournament basketball game. Your favorite team is down by one point. With no time left on the clock, the opposing team commits a two-shot foul on your star player. How would you react if the player took just one of the two free throws offered him? Strange, yes? A two-shot foul normally would give the player two chances to make one free throw, which would tie the game, and one chance to make both free throws, which would win the game. Not a bad situation to be in. But if a coach told his player to take just one of the free throws, he would reduce the team to the hope of at best forcing overtime. Any coach who made such a decision would be ridiculed out of the profession, particularly if his team lost the game.

If you think this scenario is utterly implausible, so do I. But that leaves us with some explaining to do. Why is it that when we switch from basketball to American law, we find so many lawyers willing to give up the second free throw? Under our legal system, whenever a state or local government enacts a dubious law, lawyers and clients have two chances, not one, to invalidate it. They may invoke the United States Constitution to strike the law, and they may invoke that State’s constitution to strike the law. Yet, in my experience as a federal judge, a private practitioner and a lawyer for the State of Ohio, that is not what most lawyers do.

The point of this essay is twofold: to consider why state constitutional law remains an underdeveloped area of the law; and to explain why it ought to be taught and studied more consistently in American law schools.

Keywords: state constitutionalism, constitutional law