Slaughter, Fisher discuss states’ roles in constitutional law

To mark Constitution Day, Indiana University Maurer School of Law’s Federalist Society hosted two prominent figures of the state’s legal community this week to discuss the states’ involvement in the development of American constitutional law.

Tuesday’s event, “The Forgotten Constitution(s): The Role of States in the Development of American Constitutional Law,” featured guest panelists Indiana Supreme Court Justice Geoffrey Slaughter and Indiana Solicitor General Thomas Fisher.

Ryan Scott, IU Maurer professor of law and associate dean for academic affairs, moderated the in-person event. The panel discussed the historic importance of state constitutions and delved into topics including the essential role judges and attorneys play in developing constitutional law.

“State judges and state solicitors influence law at both the federal and state level in a myriad of ways,” Scott began, opening up the floor for Slaughter and Fisher to discuss the history and role of states in the development of constitutional law over time.

“From my generation of lawyers and judges, those who attended law school in the 1980s, we were hard-wired with the idea that the most likely entity to violate individuals’ rights were states,” Slaughter said. “In many respects that hard-wired view was justified. But that’s only part of the truth.”

The rest of the story, he said, is that federal courts weren’t always so protective of individual rights. There are antecedents in state constitutional laws that also provide ample helpful protections for individual rights.

For example, Slaughter cited the 1820 case of Polly Strong, an enslaved African American woman who appealed to the Indiana Supreme Court after the Knox Circuit Court ruled that she was not free, despite the prohibition of slavery and involuntary servitude in the 1816 Indiana Constitution.

The question that came before the Supreme Court was whether someone such as Strong, who was lawfully a slave in another state, could be free in the newly admitted state of Indiana, which had a constitutional provision prohibiting slavery.

“Our court, to its credit, ruled that Indiana’s provision must prevail. Polly Strong was granted habeas corpus and was a free person in 1820,” the justice said.  “At the same time she was getting rights vindicated under the state constitution, there are many stories in which the federal courts did not recognize the individual rights we now appreciate.”

The justice pointed to infamous cases like Dred Scott v. Sandford (1857), Buck v. Bell, 274 U.S. 200 (1927), and Korematsu v. United States (1944), as Supreme Court decisions that were “clearly wrongly decided” because they rejected individual claims under the federal constitution.

“The main takeaway is that state courts were and state courts remain a source of independent vindication of individual rights under our own state constitutions that may provide greater rights than the federal constitution provides,” Slaughter said.

Fisher noted that sometimes individuals think of the state as being “antagonistic” and opposed to freedom

“But that is not the way that the philosophical construct that gives rise to our society is based,” Fisher said. “As much as we get caught up in talking about the U.S. Constitution and the important issues that surround modern cases and even older cases, state constitutions and state supreme courts that elucidate their meaning, I think, oftentimes can be even more informative as we think about the relationships between the state and the individual.”

Focusing on the present, Scott asked the panelists how they see state courts interacting with state and federal constitutional law issues and advocates litigating on behalf of states.

Fisher said lately, most of his litigating has been at the federal level, but over a span of 20 years he’s spent 50% of his time in state court and 50% in federal court. He then recalled his time in both courts working on issues like voter identification.

When asked about what he sees on the horizon of the next decade for changes to state constitutional law as political climates evolve, Slaughter posed what he called an aspirational hope.

“I hope what we see going forward is guidance from our court on what it takes to raise successfully a state constitutional claim,” the justice said. “That litigants will take the bait and will accept our invitations to raise state constitutional claims and that we will give independent meaning to important provisions of our state constitutions that don’t really have a clean counterpart under the federal constitution.”