The Vermont State Constitution (Oxford Commentaries on the State Constitutions of the United States)

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As the State Solicitor of Ohio from to , I first became aware of the significance of state constitutional law. I had not studied the topic in law school and could not have studied it there. At the time, most law schools in the country, including mine, did not offer a course on state constitutional law.

As the State Solicitor, however, I found myself facing state constitutional law issues in the Ohio Supreme Court on a regular basis.

Many of my most significant cases turned on state constitutional law: school funding, vouchers, tort reform, search and seizure, and many more to boot. I lost many of those cases on state grounds. As I tell my state constitutional law students at Harvard and Ohio State, I could teach a semester-long course on the subject based solely on cases I lost at the Ohio Supreme Court under the Ohio Constitution.

That humbling experience prompted several reactions over time. One was surprise.

Why wasn't the subject taught in law school? And why hadn't I seen more of this in practice? The answers, I came to realize, are connected. In attacking the validity of a state or local law, it's difficult to understand why claimants would prefer one chance a claim under the federal constitution , as opposed to two chances claims under the federal and state constitutions , to invalidate a law.

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As my experience as a litigant in the Ohio Supreme Court confirmed, either opportunity has the potential to provide relief for a party. Another reaction was curiosity. Why didn't books about constitutional law look at debates about bedrock liberty and property guarantees through the lens of the federal and state courts as well as the federal and state constitutions? Most constitutional law stories focus on the U. Supreme Court and the U. Those accounts also follow a familiar pattern, often casting this state government or that state official as the villain in the story and the federal courts as the heroes.

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There is ample support for that narrative, and I did not set out in this book to contradict it. But both considerations did prompt me to think about writing an account from another perspective—one that would highlight the relevance of state constitutions and supplement the prevailing narrative with accounts in which the States, especially the state courts, led the way in responding to new challenges to deprivations of liberty or property. If there is a message in the book, it is that an underappreciation of state constitutional law and state judges has hurt state and federal law and has undermined the proper balance between state and federal courts in protecting liberty and property.

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You argue in 51 Imperfect Solutions that state courts should interpret state constitutions with less deference to the way the U. Supreme Court interprets similar provisions of the federal Constitution. What would be the benefits of this? Would it improve protection for important rights at the state level? Would it ensure that rights are better tailored to the diverse needs of each State?

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State courts owe no allegiance to the U. Supreme Court in construing similar, even identical, language in their own constitutions. Sure, state courts must respect U. Supreme Court precedent in construing the U. Constitution, but after that they have no more duty to follow a U. Supreme Court decision than they do to follow a decision of a sister state supreme court. As the final judicial arbiter of the meaning of their State's constitution, state supreme court justices may construe these guarantees to mean more or less than the counterpart guarantees in the U.

Nonetheless, state supreme courts often defer to rulings of the U.

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Supreme Court in construing similar or counterpart guarantees in their own constitutions. Some indeed commit to following U. Supreme Court decisions in lockstep into the future for entire swaths of the law. How strange. Who takes a voyage without knowing its destination? State courts that independently construe the liberty and property rights in their own constitutions create a range of potential benefits for their citizens. One: the approach honors the original design of the federalist system and the original meaning of our individual rights. All of our liberty and property protections originated in the state constitutions between and —before the summer of The federal framers, it's well to remember, relied on our state constitutions in drafting the U.

That was a good model for writing the U. Constitution, and it has promise as a model for interpreting the U. On top of that, the state and federal founders saw federalism and divided government as the first bulwark in rights protection and assumed that the States and state courts would play a significant role, even if not an exclusive role, in that effort. What's sometimes called the New Federalism is not that new. Another benefit: independent interpretation by each sovereign's high court of that State's constitution permits variation when variation is due.

In a country of our size and diversity, a state supreme court often will have legitimate reasons for interpreting its constitutional guarantees differently from the guarantees in the U. Constitution and other state constitutions. Many explanations for variation exist. Sometimes the state constitutions contain different words.

Differences in terms often lead to differences in meaning—and aptly so. The history behind some state guarantees also might warrant a different interpretation. A free-exercise debate might come out differently in States like Maryland, Rhode Island, and Utah than in other States in view of the distinct historical experiences that prompted the freedom-of-religion guarantees in those States. Sometimes different interpretive methodologies will prompt different interpretations. Supreme Court decision turns on a living constitutionalist or pragmatic approach to interpretation, state supreme court justices who embrace originalism are free to adopt a different interpretation of the guarantee under their own constitution.

The same is true in the other direction. Even state and federal judges who share the same interpretive methodology can disagree. The meaning of an "unreasonable search and seizure," as applied to a technology with no meaningful analogy to 18th century searches, is bound to generate different interpretations. Just read decisions of the U. Supreme Court for proof.

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If the nine federal justices can disagree reasonably about such issues, and if even those justices sharing the same interpretive approach can disagree reasonably about them, why shouldn't we expect similar disagreement between the U. And sometimes the terms of the guarantees are sufficiently general that disagreement is inevitable. Is there just one way to construe due process, equal protection, free speech, and so on in all of the settings in which those words generate disputes?

If we must accept imperfect answers to vexing constitutional questions from time to time, why should we insist on one imperfect solution rather than fifty-one of them. In closing, I emphasize that if we are to understand what state and local governments do— and what they are capable of doing — we need to follow their money. Public finance is ultimately a decision about what type of government people want.

And such confusion and discord in state and local finances is the clearest indication that few Americans actually know what type of government they want. They want low taxes and lots of services. The types of trade-offs — between revenues that can go to the public purse, and services provided by multiple governments — are seldom discussed, and increasingly, fail to meet the standards of constitutional federalism as a result. He has published numerous scholarly articles on intergovernmental politics, American political history, and the American presidency.

Sebelius , U. Jacobs and Connor M. State and Local Tax Burdens. Although written more than years ago, the United States Constitution contains a highly sophisticated — some might even say, modern — theory of public finance.

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But, the type of federalism outlined by the Constitution was an unprecedented experiment, because it gave the general government and each of its smaller, constituent governments independent taxing authority — a system known as concurrent taxation. In short, by creating more government, Americans should pay fewer taxes. This logic is explored — as much of the Constitution is — in The Federalist Papers.

Essays number 10 and 51 might get all the fanfare, but at least a dozen individual essays, primarily written by Alexander Hamilton, deal exclusively with the logic of taxing authority. First, the Constitution is an arrangement that gives each government independent authority for raising revenue. Arguably, this is the single most consequential revision to the Articles of Confederation, which had made the national government dependent on state governments for all its revenues.

It is the proximate cause of nearly all objections levied by the Anti-Federalists, because, independent taxing authority is an unambiguous method for creating a more powerful federal government. In giving the federal government taxing powers, the framers gave the federal government independence. However, the Constitution not only establishes independent taxing authority, it also underspecifies the various sources of tax revenue each government can levy.

And, it reserves only one type of tax to the general government: taxes on imports, or tariffs.