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Kafker Final 4 PDF
Kafker Final 4 PDF
SCOTT L. KAFKER*
P
rofessor Marshfield is to be commended for his ambitious
attempt to begin to quantify constitutional change. As data-
driven decision making transforms our world and gives us an
increasingly sophisticated understanding of its inner-workings, the
obvious question for scholars is what it can teach us about constitutional
law.
As a judge and former adjunct professor of state constitutional law, I
have often wondered about the different factors driving constitutional
change in the courts. In my class, we explored the dynamic relationship
between state and federal constitutional law; that is, how changes in
United States Supreme Court doctrine result in reactions by state supreme
courts, especially concerning the rights of criminal defendants. 1 We
examined horizontal federalism—how a major decision by one state
supreme court influences other state supreme courts deciding the same
question, for example, in education financing. 2 We also considered the
see, e.g., People v. Anderson, 493 P.2d 880, 891 (Cal. 1972); see also Massachusetts v. Upton, 466
U.S. 727, 732 (1984); Commonwealth v. Upton II, 394 Mass. 363, 372 (1985); Commonwealth v.
Upton, 390 Mass. 562, 566 (1983).
2 See Williams, supra note 1, at 120, 352; see, e.g., McDuffy v. Sec’y of Exec. Office of Educ.,
519
520 New England Law Review [Vol. 51|3
3 See Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 393–94 (2003); Schulman v.
Attorney General, 447 Mass 189, 195–96 (2006); see also Scott L. Kafker and David A. Russcol,
Standing at a Constitutional Divide: Redefining State and Federal Requirements for Initiatives after
Hollingsworth v. Perry, 71 WASH. & LEE. L. REV. 229, 229 (2014).
4 See generally Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).
5 See generally William Brennan, State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489 (1977); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18
GA. L. REV. 165, 179 (1984). Professor Linde's article has been cited in 308 articles, three United
States Supreme Court cases, one federal circuit court of appeals case, and 31 state supreme
court cases.
6 See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal
Rationality Review, 112 HARV. L. REV. 1131 (1999) (cited in 184 articles and four state supreme
court cases); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L.
REV. 1147 (1993) (cited in 171 articles and eight state supreme court cases).
7 See In re Farrell, 108 N.J. 335, 348 (1987); In Re Conroy, 98 N.J. 321, 346–48 (1985); In re
Quinlan, 70 N.J. 10, 38–40 (1976) (discussing alternatives of common law or constitutional
basis for addressing right to refuse medical treatment).
8 Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States, 51 New
2017] A Judicial Perspective 521
new theory of state constitutional meaning that emanates not exclusively from courts, but
rather, from an 'exchange between popular mobilization and judicial interpretation'"); G. Alan
Tarr, UNDERSTANDING STATE CONSTITUTIONS 139, 161–73 (1998) (discussing frequency of
formal amendment in twentieth century and emergence of "new judicial federalism" in the
early 1970's).
12 Marshfield, supra note 8, at 515.
13 Marshfield, supra note 8, at 455–56.
522 New England Law Review [Vol. 51|3
17 For example, Professor Marshfield looks to John Dinan and Heather Gerken (among
others) to support his proposition. See Marshfield, supra note 8, at 456–57 nn. 8, 13. The articles
by Dinan and Gerken, however, are much more measured. As Dinan states, "We are so
accustomed when we talk about constitutionalism to focus first and foremost on courts that
we often fail to attend to the importance of constitutional amendment." John Dinan, State
Constitutional Amendments and American Constitutionalism, 41 OKLA. CITY U. L. REV. 27, 28
(2016). Dinan concludes, "I have sought to turn attention away from the usual focus on state
courts in interpreting state constitutions." Dinan, supra, at 50. Gerken likewise stresses that the
"most widely recognized means for effecting [constitutional] change is, of course, judicial
interpretation." Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response
to Our Undemocratic Constitution, 55 DRAKE L. REV. 925, 929 (2007). She also emphasizes the
complexity of the academic literature. See Gerken, supra, at 929, 930–32. Marshfield himself
writes, "The processes of constitutional change are incredibly complex and should not be
oversimplified." Marshfield, supra note 8, at 471. I find the detailed descriptions of both
informal and formal change occurring during this time period more compelling. See, e.g.,
Williams, supra note 1, at 32, 119–21; Tarr, supra note 11, at 139, 161–73.
18 Marshfield, supra note 8, at 484.
19 See Marshfield, supra note 8, at 484–85; Brennan, supra note 5, at 491; Williams, supra note
1, at 113-33.
2017] A Judicial Perspective 523
Brennan could legitimately say less than a decade into this timeframe that
“[r]ediscovery by state supreme courts of the broader protections afforded
their own citizens by their state constitutions . . . is probably the most
important development in constitutional jurisprudence of our times.” 20
Justice Brennan’s article itself has been cited 2,180 times, 151 times by state
supreme courts. As Professor Marshfield eventually concludes, informal
amendment is actually a “frequent” and “prominent” method of
constitutional change in the states. 21 As I question what Marshfield calls the
“prevailing theory,” I am not surprised by his findings that demonstrate
that the theory is somewhat inaccurate, and that there is significant
informal constitutional change despite the availability and regularity of
formal amendment.
I also have concerns about Professor Marshfield’s methodology for
calculating informal constitutional change and suspect that he may be
significantly understating the amount of such change. Professor Marshfield
describes informal constitutional change as “occur[ring] when binding
constitutional rules are altered without any corresponding changes to the
constitution’s text.” 22 He then draws on “an original database of state high
court opinions from 1970 to 2004” where the court “chose to explicitly
overturn one of its own constitutional precedents.” 23 He correctly
recognizes that this database is “imperfect in that [the number of cases] are
likely under-inclusive of instances where courts contributed to informal
amendment.” 24 Just how under-inclusive is what troubles me.
Although I have not drilled down through all the numbers, I decided
to look further into the Massachusetts cases to test the methodology.
Professor Marshfield’s table lists seven cases from the Supreme Judicial
Court that purportedly represent the informal constitutional change that
occurred between 1970 and 2004. 25 They are: (1) Conor v. Commonwealth, 363
Mass. 572 (1973), overruling Commonwealth v. Doherty, 353 Mass. 197 (1967);
(2) Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 (2004),
overruling Antioch Temple, Inc. v. Parekh, 383 Mass. 854 (1981); (3) Pinnick v.
20 Chip Mellor & Clint Bolick, Opinion, The Power of State Courts, NAT’L L.J. Sept. 3, 2001;
see also Ronald K.L. Collins, Peter J. Galie, & John Kincaid, State High Courts, State
Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey, 13 HASTINGS CONST.
L.Q. 599, 600 (1985-1986) (finding that, "[s]ince 1977 alone, state high courts have rendered at
least 217 rights-affirming decisions based upon provisions of their state constitutions-
approximately a 131 percent increase in the number of such decisions over the ninety-four
decisions issued during 1950–1977").
21 Marshfield, supra note 8, at 461.
22 Marshfield, supra note 8, at 462.
23 Marshfield, supra note 8, at 487.
24 Marshfield, supra note 8, at 487.
25 Marshfield, supra note 8, at 517.
524 New England Law Review [Vol. 51|3
26 I requested the seven cases from Professor Marshfield, and he kindly provided them.
27 Marshfield, supra note 8, at 517.
28 See generally Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153
(1976); Anderson, 493 P.2d at 899; MELVIN UROFSKY, DISSENT AND THE SUPREME COURT, 388–
400 (2015).
29 See McDuffy, 415 Mass. at 618–19 (adopting guidelines set forth by Rose v. Council for
Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989) because they "fairly reflect[ed] [the court's]
view of the matter and [were] consistent with the judicial pronouncements found in other
decisions"). The McDuffy decision was part of a wave of state constitutional education
decisions tracing back to the California Supreme Court decision in Serrano v. Priest, 5 Cal.3d
584 (1971). See also William E. Thro, Judicial Analysis During the Third Wave of School Finance
Litigation: The Massachusetts Decision as a Model, 35 BC. L. REV. 597, 600 n.22 (1994). See
generally, e.g., Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989); Rose v.
2017] A Judicial Perspective 525
Council for Better Edu., Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Indep. Sch. Dist. v. Kirby,
777 S.W.2d 391 (Tex. 1989); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).
30 Gonsalves, 429 Mass. at 668.
31 I also did a brief review of the Vermont case law and commentary. Vermont similarly
raises questions about gross under-inclusiveness in Professor Marshfield's numbers. He lists
this state as having only one informal amendment during the time period. Marshfield, supra
note 8, at 518. Vermont, however, seems to have had active informal change during this time
period. See, e.g., State v. Sprague, 824 A.2d 539 (Vt. 2003) (relying on higher standard under
Vermont Constitution and rejecting holding in Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977), that "when an automobile is lawfully stopped for a traffic violation, a police officer
may, as a matter of course, order the driver to exit the vehicle"); Baker v. State, 744 A.2d 864,
867 (Vt. 1999) (noting the state is constitutionally required by Vermont’s Constitution to
"extend to same-sex couples the common benefits and protections that flow from marriage
under Vermont law"); State v. Jenne, 591 A.2d 85 (Vt. 1991) (holding that young people, blue-
collar workers, less-educated people, and single people do not constitute distinctive groups
within the community for jury selection purposes under Vermont Constitution); State v.
Brunelle, 534 A.2d 198, 203 (Vt. 1987) (rejecting in part holdings in United States v. Haven, 446
U.S. 620 (1980), and Harris v. New York, 401 U.S. 222 (1971), that unlawfully obtained
evidence could be used to impeach defendants on cross-examination, and holding instead that
"previously suppressed evidence is unavailable to the State for impeachment purposes except
when it is clear that the defendant has testified during direct examination in a manner
contradictory to the suppressed evidence"); State v. Jewett, 500 A.2d 233, 235 (Vt. 1985)
(explaining standards to be applied "to aid in the formulation of a state constitutional
jurisprudence that will protect the rights and liberties of [the people of Vermont]"); Brigham v.
State, 692 A.2d 384 (Vt. 1997) (finding that the then-existing scheme for funding public
education violated the Vermont Constitution). See also Peter Teachout, "No Simple Disposition":
The Brigham Case and the Future of Local Control Over School Spending in Vermont, 22 VT. L. REV.
21, 22–23 (1997).
526 New England Law Review [Vol. 51|3
32 Ronald K.L. Collins, Peter J. Galie & John Kincaid, State High Courts, State Constitutions,
and Individual Rights Litigation Since 1980: A Judicial Survey, 13 HASTINGS CONST. L.Q. 599, 600
(1985–1986) ("Since the early 1970's, state courts of last resort have issued a growing number
of decisions in which provisions of state constitutions have served either as independent
grounds or as the only grounds for ruling on questions of individual rights and liberties.").
33 For recent examples of this type of constant revision in Massachusetts, I recommend a
review of the cases addressing new technologies and search warrants. See, e.g.,
Commonwealth v. Molina, 71 N.E.3d 117 (Mass. 2017); Commonwealth v. Martinez, 71 N.E.3d
105 (Mass. 2017); Commonwealth v. Dorelas, 43 N.E.3d 306 (Mass. 2016); Commonwealth v.
Broom, 52 N.E.3d 81 (Mass. 2016); Commonwealth v. White, 59 N.E.3d 369 (Mass. 2016);
Commonwealth v. McDermott, 864 N.E.2d 471 (Mass. 2007).
34 Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in
constitutional law method in the United States Supreme Court) see also EDWARD H. LEVI, AN
INTRODUCTION TO LEGAL REASONING (2013) (featuring the classic description of the common
law method). See generally DAVID. A. STRAUSS, THE LIVING CONSTITUTION (2010).
36 Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 RUTGERS L.J. 881,
897 (1988–1989).
37 Id. at 896.
2017] A Judicial Perspective 527
Judiciary of Initiative Amendments to State Constitutions, 2012 MICH. ST. L. REV. 1279, 1280 (2012);
Williams, supra note 1, at 409–15.
44 MASS. CONST. art. 26; Watson, 381 Mass. at 671; Hauck, et al. Capital Punishment
45 Colon-Cruz, 470 N.E. 2d at 128-29. See. e.g., People v. Anderson, 493 P.2d 880 (Cal. 1972)
(after the California Supreme Court declared its death penalty statute unconstitutional, an
initiative passed which reinstated the death penalty); Nicholas L. Georgakopoulos, Judicial
Reaction to Change: The California Supreme Court Around the 1986 Elections, 13 CORNELL J.L. &
PUB. POL'Y 405, 409 (2004) (discussing passage of Proposition 17).
46 See Hon. Roderick Ireland, In Goodridge's Wake: Reflections on the Political, Public, and
Personal Repercussions of the Massachusetts Same-Sex Marriage Cases, 85 N.Y.U. L. REV. 1417,
1423-24 (2010); see also Kafker, supra note 43, at 1303.
47 See Neal Devins & Nicole Mansker, Public Opinion and State Supreme Courts, 13 U. PA. J.
CONST. L. 455, 455–56 (2010).
48 744 A.2d 864 (Vt. 1999).
—Reflections On State Constitutional Theory and Same-Sex Marriage Claims, 35 RUTGERS L.J. 1249
(2004).
2017] A Judicial Perspective 529
50Id. at 1265.
51Id. at 1255; see Baehr v. Lewin, 74 Haw. 530, 580 (1993).
52 Amestoy, supra note 49, at 1257; Cass R. Sunstein, Foreword: Leaving Things Undecided,
56 Devins & Mansker, supra note 47, at 462. (quoting David Rottman, Judicial Elections in
state supreme court justices. “Studies show that particular issues, such as
crime and the death penalty, get judges subject to all election types to
consider public opinion.” 58
The role that elections play in constitutional change is, of course,
another factor that must be analyzed. According to one commentator,
“path-breaking state courts—state courts that take the lead in extending
rights and extending the bounds of the law—are subject to fewer
democratic controls than state courts that steer away from political
controversy.” 59 Indeed, of the first seven state supreme courts to interpret
their constitutions to “provide expansive protections to same-sex
couples . . . none . . . ma[d]e use of contested judicial elections.” 60 Millions
of dollars are also being spent by advocacy groups and others to change
the composition of state supreme courts. 61 The extent to which they are
successful and how that success results in changes in constitutional
doctrine would also be fascinating to explore and quantify.
I will end with a brief discussion of Professor Marshfield’s breakdown
of informal amendments by “subject and type.” 62 He has ten categories:
individual rights, voting, legislative branch, executive branch, judicial
branch, local government, taxation and finance, state and local debt, state
functions, amendments and revisions, and miscellaneous. 63 He describes as
another “interesting observation from the data . . . [t]he extent to which
courts have been active in changing the constitutional rules that regulate
the judiciary” and how “[t]his stands in contrast to rules regulating the
legislative and executive branches . . . .” 64 It seems to me that the significant
difference in numbers he describes is quite consistent with the judiciary’s
respect for separation of powers.
Professor Marshfield also emphasizes that “[i]nformal amendment by
courts was the dominant method used to change individual rights
protections[,]” while courts, on the other hand, are relatively inactive in
changes regarding taxation and finance. 65 This fundamental versus
constitutionality of the death penalty, is a clear example of how elected judges are
increasingly accountable to electoral majorities.").
58 Devins & Mansker, supra note 47, at 482.
59 Devins & Mansker, supra note 47, at 455.
60 Devins & Mansker, supra note 47, at 491-92.
61 See Maryl J. Chertoff, Trends in Judicial Selection in the States, 42 MCGEORGE L. REV. 47,
60-61 (2010); James Sample et al., The New Politics of Judicial Elections, 94 JUDICATURE 50, 51
(2010) (From 2000-2009, supreme court candidates raised $206.9 million nationally, more than
double the $83.3 million raised from 1990-1999).
62 Marshfield, supra note 8, at 494.
63 Marshfield, supra note 8, at 494.
64 Marshfield, supra note 8, at 497.
65 Marshfield, supra note 8, at 498.
2017] A Judicial Perspective 531
CONCLUSION
66 Los Angeles County Transportation Comm’n v. Richmond, 643 P.2d 941, 945 (Cal. 1982).
67 See Richard Briffault, Foreword: The Disfavored Constitution: State Fiscal Limits and State
Constitutional Law, 34 RUTGERS L.J. 907, 910 (2003).