State Constitutions
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What is their function?
What is addressed?
How do they relate to federal constitution?
How are provisions that somewhat parallel
equal protection and due process
interpreted? Why?
• How are other provisions unique to state
constitutions interpreted? Why?
Function and Content
• What do you think needs to be addressed
in state constitutions?
Federal Equal Protection
• Classification: what is it?
• Depending on nature of classification, tiers
– Economic--“Rational Basis”: legitimate
purpose, reasonable means to achieve it
– Gender--“Intermediate tier”: important
purpose, means substantially related
– Race & certain rights--“Strict scrutiny”:
compelling purpose, necessary means (“fatal
in fact”)
Federal Due Process
• Depriving any “person” of “life, liberty or
property” without “due process of law”
• Life, liberty or property interest?
• Process that is due?
• Substantive standard?
– History pre New Deal
– Rare unless “arbitrary and capricious”/shocks
conscience
Relation to federal constitution
• Identical/lockstep?
• Primary: look to state first and give its own
reading
• Interstitial (fill in gaps): look to federal first,
then go to state if needed
State Examples--Vermont
• Ludlow Supermarkets
– Sunday closing laws, but exceptions for small
stores
– Common benefit clause: “Government is, or
out to be, instituted for the common benefit,
protection, and security of the people, nation,
or community and not for particular
emolument or advantage of any single
person, family, or set of persons, who are only
part of that community
“Common Benefit Clause”: Baker
• Dilemma: Separate policy (legislative)
from law (judicial)?
• Approach
– Treat as an “exclusion”
– Philosophical /historical (VT’s identity)
– Textual
– Analytical: close look at benefits denied,
stated purposes, close inquiry into fit, balance
Other alternatives?
• Standard equal protection/tiers?
• “Less restrictive alternative”?
• Remedy: defer to legislature v. exact
equivalence? (Goodridge II, MA)
“Grant, not limitation”
• There are also clear limitations (“no citizen
shall be denied…”
• Generally, granted powers rather than
limitations on powers (compare federal
powers: limited since given by states)
• Special instances
– “implied limitations”—separation of powers?
– Taxation and debt generally specific
Canons of Construction: Textual
• Specific words followed by general
words—treat general as similar to specific
(ejusdem generis)
• Expression of one thing is exclusion of
another (expressio unius)
• Meaning of word ascertained by reference
to asociated words (noscitur a sociis)