Q&A with Professor Jeffey Shaman

DePaul Law Jeffrey Shaman
Vincent de Paul Professor of Law Jeffrey M. Shaman has written extensively on constitutional law and judicial ethics and is a nationally recognized authority on those subjects. He served as faculty director of the Center for Public Interest Law and also served on the advisory boards of the Center for Church-State Studies and the International Human Rights Law Institute. As an attorney, Professor Shaman has litigated cases involving due process of law, equal protection of law, freedom of speech and other constitutional rights. Here, he discusses recent work and the intricacies and importance of constitutional law.

Congratulations on the second edition of your book, “State Constitutional Law: The Modern Experience.” What can you tell us about it?

This book examines contemporary constitutional issues that occur under state constitutions across the nation. It focuses on the most interesting and important decisions to illustrate the astonishing array of state constitutional issues arising in modern American law. This approach emphasizes the function of state constitutions in our federal system. My co-authors are Randy Holland, a justice on the Supreme Court of Delaware; Steve McAllister, a law professor and solicitor general of the State of Kansas; and Jeffrey Sutton, a judge on the U.S. Court of Appeals for the 6th Circuit. There is a wide scope of experience and perspective between the four of us, which is reflected in the book. I found it extremely enlightening to trade ideas with my three co-authors. The first edition of the book was published in 2010. Since then, there have been many significant developments in state constitutional law, particularly concerning rights and liberties. Under state constitutions, the courts have expanded property rights, the right of privacy, and the right to equality. So, when the publisher asked us to do a new edition, we jumped at the chance.

What else have you been working on?

I have been serving pro bono as guardian ad litem in the ongoing litigation in R.J. v. Jones. This is a federal lawsuit filed by the American Civil Liberties Union of Illinois to improve the living conditions of juveniles confined at state justice facilities across Illinois. Currently the Illinois Department of Juvenile Justice confines around 750 juveniles. The Federal District Court appointed me to serve as guardian ad litem for the plaintiff class of juveniles. In that capacity, my responsibility is to insure that the interests of the plaintiff class are properly represented.

At DePaul, you teach State Constitutional Law, as well as the core course in Constitutional Law. How do these differ?

All law schools in this country offer a course called Constitutional Law that focuses primarily—in fact, almost exclusively—on the federal Constitution. They rarely mention, much less explain, the role of state constitutions in our system of government and laws. Unfortunately, this tells just half the story, so to speak. A course in state constitutional law tells the other half of the story by focusing state constitutional principles and doctrine, which are an integral part of American constitutional law.

Why is state constitutional law important?

To understand American constitutional law, one cannot study federal constitutional law by itself or, for that matter, state constitutional law by itself. A full understanding of one is not possible without an appreciation of the other. State constitutions provide a rich source of rights independent of the federal Constitution and may be interpreted to grant more extensive protection for individual rights than is recognized under the federal Constitution. The realization that state constitutions are documents of independent force opens up a new way of thinking about constitutional law, and in a number of instances has influenced the development of federal constitutional law. In many areas, state courts take the lead in developing constitutional doctrine.

In interpreting their own state constitutions, are state courts bound to follow Supreme Court decisions interpreting the federal Constitution?

No, they are not. Under the system of dual sovereignty that exists in this nation, a state court is free to interpret its own state constitution as it sees fit, provided it does not contravene federal law. Although the Supremacy Clause makes federal law supreme to state law, so long as state constitutional protection does not fall beneath the federal floor, a state court may interpret its own constitution more expansively than the federal constitution, and this is so even where state and federal constitutional provisions are identical in wording. State courts ordinarily grant a degree of respect to decisions of the U.S. Supreme Court, but state courts are not bound by those decisions or obligated to follow them. There have been many instances when state courts have interpreted their state constitutions to provide more extensive rights than those afforded by federal law. In fact, state courts frequently lead the way in recognizing new rights.

Specifically, what are some of the ways that state constitutions differ from the federal Constitution?

Many state constitutions contain provisions that have no parallel in the federal Constitution. For example, a number of state constitutions contain so-called “open court” provisions that guarantee access to the courts and a right to a remedy for every wrong. State constitutions may contain provisions protecting the environment or guaranteeing victims’ rights, neither of which can be found in the federal Constitution. While the federal document says nothing about a right to an education, all 50 state constitutions contain education articles that require the legislature to establish a system of free elementary and secondary education for all children in the state. These education articles place an affirmative duty on the state to provide an adequate education for all children in the state and in some instances have been interpreted as meaning that there is a fundamental right to an education entitled to strict constitutional protection. In contrast, under the federal Constitution education is not a fundamental right and there is no obligation on the part of a state to provide elementary or secondary education to any person.

What are some of the more significant developments in state constitutional law that have had a major impact upon our legal system?

One of the most significant has to do with same-sex marriage. In 2003, the Supreme Court of Massachusetts decided Goodridge v. Department of Public Health, ruling that under the state constitution there was a right to same-sex marriage. That decision came some 19 years before the U.S. Supreme Court finally recognized a right to same-sex marriage under the federal Constitution. Another noteworthy development began with a 1992 decision of the Kentucky Supreme Court recognizing a right of intimate association protected by the state constitution. Not long after that, the supreme courts of four other states issued similar rulings, but the U.S. Supreme Court did not recognize a constitutional right of intimate association until 2003. Yet, another significant development has to do with property rights; in eminent domain cases, several state supreme courts have recognized more expansive property rights than have been recognized by the U.S. Supreme Court under the federal Constitution.

What do you hope students take away from your classroom?

The main takeaway is that state constitutions are a rich source of rights that go beyond the rights provided by the federal Constitution. As a result, to fully represent a client in a constitutional case, it is important to have an understanding of state constitutional law. State constitutional law often is an additional or a better way to protect the rights of a client. ​