What Law Schools Teach When They Don’t Teach About State Constitutions

Abstract

State constitutional law has always been an essential component of federalism and a key to understanding the fabric of American law. It is even more important today. In the last few terms, the Supreme Court of the United States has upended established principles of U.S. Constitutional law and left many consequential legal issues in the hands of state courts and state constitutions. Yet despite the critical importance of state constitutions, few lawyers graduate from law school with a working knowledge of state constitutions and the role they play in federalism or the legal system more broadly. While virtually all students learn about the United States Constitution as part of the required law school curriculum, many don’t have the opportunity to even take an elective course in state constitutional law. This article addresses the mismatch between the importance of state constitutional law and the way that it is taught – or not taught – in American law schools. It quantifies the gap in state constitutional law instruction in American law schools and considers the consequences when law schools fail to provide every American lawyer with a foundational knowledge of state constitutional law.

The article first explains the importance of state constitutional law, both as essential to understanding federalism and as a vehicle for the protection of individual rights. It then considers law schools’ curricular choices in teaching constitutions by providing much-needed information about state constitutional law offerings in ABA-accredited law schools. The article observes that coverage of state constitutional law is spotty. It is frequently not offered, and even where it is, state constitutional law is typically a small-enrollment non-required course. The article concludes that there is a significant a mismatch between the importance of state constitutional law and its treatment in law schools, which sends inaccurate messages to the profession. Those messages, we posit, hobble lawyers’ ability to bring state constitutional claims, stunt the development of state constitutional doctrines, and maintain a hierarchy in legal education that sidelines state constitutional scholars. Finally, the article encourages law schools to consider ways to course-correct through curricular change and other messaging.

Keywords: Constitutional Law, State Constitutional Law, State Constitutions, State vs. Federal Constitutions, Teaching Constitutional Law, Teaching State Constituional Law, Federalism, Legal Education, Law School Curriculum, Curricular Reform, Gaps in Legal Education.