Author: Daniel Rodriguez

The movement toward robust state constitutional review — sometimes called, if a bit imprecisely, independent state constitutional interpretation — began in earnest with the important advocacy of the late Justice William Brennan in his seminal 1970’s article in the Harvard Law Review. This built, of course, on an edifice set by imaginative state supreme court jurists, most of whom are scarcely remembered by mainstream constitutional law theory, much less our students. And yet for those of us who have long toiled in the fields of state constitutional law and theory, we remember that the effort to build a truly original and impactful state constitutionalism, for the benefit of our larger constitutionalism project in the United States, has been cooking on high heat for a half century’s time.

Those of us in the cognoscenti also recognize that the appeal of independent state constitutional interpretation often tracks partisan political efforts. In the latter part of the 20th century and into our new century, independent interpretation has often invoked to protect individual rights, especially free speech and equality The protection of same sex marriage, for example, began with some progressive state supreme courts, as did the later the efforts to protect property rights after Kelo. The current turn toward state constitutional law owes much to the Supreme Court’s decision in Dobbs. After this decision, left-leaning organizations such as the Brennan Center have pushed hard the narrative that state courts could and should use their discretion to protect significant individual rights despite the federal courts’ conservative retrenchment.

There is nothing remarkable about this nexus between legal strategy and constitutional theory. Old timers like me can nonetheless smirk at least at the rediscovery of state constitutional law and independent interpretation by liberal legal scholars and lawyers who are working hard to press state courts to employ their power to advance rights-forward views of state constitutionalism in order to combat federal neglect. And, to be sure, conservative scholars and lawyers have a playbook that would deploy state constitutional interpretation to ensure the establishment and maintenance of conservative results through independent approaches to reading and applying their Red state constitutions.

The pearl-clutching of Virginia (and other) Democrats seems to me another matter entirely, or least a more transparent effort to yoke theory to a certain version of constitutional hardball. Last week the Virginia supreme court issued a 4-3 ruling in which they interpreted “elections” to require something mor than the eleventh-hour enactment by the legislature of a redrawn Congressional map. Let me say first that I am not convinced by the majority’s arguments and so I think the case wrongly decided. The dissent raises a number of, to me, strong arguments based upon the Virginia Constitution’s text and some residue of common sense interpretation and the court majority’s response seem rather weak at parts. Beyond that, I cannot and will not say anything about the partisan motivations of the four in the majority, nor of the three in dissent. The opinion, at bottom, is within the boundaries of reasonable constitutional argument, and in some existential sense is a fairly workmanlike, and at times even boring, exegesis on the meaning of elections under the Virginia Constitution. Importantly as a matter of judicial federalism, there is nothing in the supreme court’s opinion that ensures that such a reading would be or will be compelling to other states that will consider similar redistricting shenanigans before the next Census is completed. This is, in the end, an example of independent state constitutional interpretation, meaningful for Virginia and only for Virginia.

Yet of course this decision has enormously important political effects. Therefore, Democrats have raced to the Supreme Court in an effort to get SCOTUS to overturn this effort. The arguments are wholly implausible, and it is hard not to see the Commonwealth’s efforts as anything other than a hail mary, hoping that the football will bounce around barely cogent legal arguments until it might fall haphazardly into the hands of a majority of the justices. The principal argument rests on a version of the so-called independent state legislature theory that was decisively rejected in Moore v. Harper. The sliver of hope reflected in the Court’s comment there that some federal constitutional protection is available when the state court has “arrogated judicial power” to itself is surely extinguished here, where the state court has engaged in normal (even if to many of us, including the dissenters, as unpersuasive) constitutional reasoning. Not to put too fine a point on it, but accepting the Commonwealth’s argument essentially eviscerates independent state constitutional interpretation, as it subjects state courts to the judgment of federal courts on matters that are entirely the province of state law. Or, to put this issue somewhat more charitably, it widens beyond sensible reason this ostensible exception to the foundational idea that federal courts will not subject state courts to second guessing when the fulcrum of the issue is the state constitution.

To be sure, Michigan v. Long introduces some potential ambiguity to this matter. Therein the Court held that if the state court is basing its decision on what is really federal law, then they can’t hide under the cloak of independent interpretation, but should be subject to the federal courts’ surely superior view of what federal law requires. Cleverly, the Commonwealth looks to Long in their SCOTUS appeal, arguing that the Virginia supreme court based its decision on an erroneous reading of federal law. This post is long enough already, so I will leave the reader to read the court’s lengthy opinion on her own, to see whether she agrees with my assessment that this argument is risible. The supreme court clearly bases its decision on its interpretation of what it believes the Constitution of Virginia demands. Michigan v. Long ultimately provides no support for the state’s argument, and is bound to fail.

So much for the Commonwealth’s hail mary. Lawyers gotta lawyer, and there is nothing especially unethical nor profoundly hypocritical in the state’s attempt to seek relief (throw itself at the mercy?) of the Court at this last proverbial minute. The other effort, however, is a bridge too far. Indeed, if the New York Times hadn’t reported this effort, I wouldn’t have believed it. Apparently a critical mass of Democratic operatives are pushing to have the supreme court upended by imposing retroactive age limits on the justices, the result of which is that the justices in the majority would be bounced from office and immediately replaced by enough justices to reach a quorum and, more to the point, justices who could be depended upon to quickly reverse course and uphold the legislature’s map.

This will go nowhere, it almost goes without saying. But let me suggest that this version of constitutional hardball is especially unattractive, precisely because it goes to the heart of what the strange bedfellows of liberals and conservatives — covering a spectrum from Justice Brennan to Chief Judge Jeff Sutton, and many others in between — have been advocating more or less consistently for now nearly a half century, and that is the virtue and value of a truly independent approach to state constitutional interpretation. Given the smaller scale of states in our overall polity, it is naturally convenient for hardcore partisans playing this sort of hardball to manipulate state political processes to accomplish nakedly political aims. That my post focuses on Democratic strategies in Purple State Virgnia shouldn’t blind us to the fierce efforts of MAGA Republicans to likewise weaponize various political and legal arguments to capture the apparatus of their states in order to advance raw partisan agendas.

That it is happening all over is regrettable. But let me say that the reason it is regrettable is not because it disturbs the pristine character of state constitutionalism and our judicial federalism. Let me not clutch my own pearls here. Rather, the reason is it disturbs an equilibrium (political + legal) that has reflected the common agenda and objectives of most parts of our political ecosystem for a long while now and, with it, has strengthened federalism and the comparative advantage of state constitutionalism and state constitutional jurisprudence in a time in which the turbulence of national politics has threatened the values of federalism that is reflected in our still durable and still potent constitutional order. Independent state constitutional interpretivists need real, not fair weather, friends.

[Reposted from my Substack]

The recent Tariffs case has again put the major questions doctrine front and center in the current administrative law ecosystem. MQD sits alongside Loper Bright one of two big bruiser doctrines in a turbulent world in contemporary admin law. What do these doctrines mean for courts determining whether and to what extent Congress has delegated meaningful regulatory power to administrative agencies?

Opinions from the justices defending and describing MQD suggest that one of the central elements of the favored analysis is the use of this doctrine as a canon of interpretation. For Justice Gorsuch, this canon emerges from the essential structure of Congressional power, the fulcrum of which is the Vesting Clause of Article I. Viewed more globally, as not only Gorsuch, but also Chief Justice Roberts and Justice Kavanaugh have articulated it in different places, the canon is part and parcel of our Constitution’s separation of powers scheme. It is not simply useful as an aid to interpretation, but is constitutionally required. Justice Barrett has made clear in two intriguing concurring opinions that MQD is better understood as no more or less than a rather ordinary canon of interpretation, something borne of “common sense” and embedded in our longstanding commitment to textualism in statutory interpretation.

Thanks for reading Daniel B. Rodriguez! Subscribe for free to receive new posts and support my work.

Whatever can be said on behalf or against Barrett’s effort at refining (and maybe thereby disciplining?) MQD, what her opinions make apparent is that the main event in all this is textualism, and MQD’s allure and also its controversy turns on how deeply committed are the justices and, with their boots on the ground, appellate judges to textualism as the one true method for discerning legislative will. This is true no less for Gorsuch’s grand theory of MQD. Take on face value his casting of the doctrine as “pro-Congress,” as Gorsuch puts it in his concurring opinion in Learning Resources, and see that what is likewise pro-Congress is fidelity to statutory text. Bottom line: If the text alone cannot bear the weight of an interpretation that authorizes agencies or the President to undertake regulatory decisions, then that’s the end of the matter. The requirement of a clear statement means clarity measured solely and inextricably by the text.

Pushing Barrett’s point further than perhaps she would allow, what is common sense about MQD is not so much the way in which the canon is used as a tie-breaker of sorts, but the core case for reading the statute as would a textualist. The statute can given only a meaning that the words will bear. Textualism 101. QED. You don’t really need a muscular canon to figure out what will be that meaning; you just need ordinary interpretation. Indeed, before MQD became all the rage, then-judge Brett Kavanaugh explained in an important Harvard Law Review essay, entitled “Fixing Statutory Interpretation,” that the critical error in modern approaches to delegation issues (focusing in particular on the Chevron doctrine) was the eagerness by judges to find statutes ambiguous when ordinary textualist interpretation would ably shape the statute’s interpretation and give it meaning.

Returning to Gorsuch on MQD, one can believe with him (I don’t, but this is not the post in which to fight this battle) that MQD is sourced in Article I and the separation of powers, but also see that what is undergirding all this is not the argument that the clear statement rule emerges from the Constitution, but the foundational claim that textualism writ large is required by the Constitution. That, of course, is the sine qua non of Justice Scalia’s theory, articulated most fully in his book on this subject and his most important statutory interpretation opinions.

Viewed through this lens, MQD is principally an aid to interpreting statutes where there is ambiguity. And we are reminded by the Chief Justice in Loper Bright that the determination of whether and to what extent the statute is ambiguous will be decided by courts not agencies, and, returning to the point, through textualist methodology.

To be sure, there is a there there in all this MQD debate. After all, the MQD doctrine in its modern version requires this clear statement only in matters of “economic and political significance.” Minor questions don’t require appeal to this doctrine. However, let’s remember that Team MQD still requires textualist interpretation in even those minor questions. We don’t draw the conclusion (Loper Bright teaches us) from the absence of language or legislative history indicating that agencies get to decide what the statute means that courts must then defer to agency interpretations. Rather, courts are obliged to interpret the statute, because that is what courts do and that is what is required by the APA and Marbury v. Madison.

And so the big event is textualism. That is true both before and after Loper Bright; and it is true whatever the courts are to make of MQD. Textualism helps courts to discern what Congress has done or not done with regard to delegating administrative power. And this is true of major and minor questions alike.1

(republished from my Substack).

1

Justice Kagan comes at all this from another direction entirely. In Part IV of her dissent in West Virginia v. EPA, she accuses the Court of jettisoning textualism in order to fulfill larger objectives. As she puts it: “ The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get out-of-text-free cards.” I am fully in accord with Kagan’s critique of MQD on other grounds, finding her dissents in the key cases and her concurrence in Learning Resources. However, I think that Team MQD, taking what they say about the particular statutes in question on face value, see no real daylight between a scrupulous commitment to textualist methodology and use of MQD as a compelling clear statement rule (Gorsuch) or a common sense rule (Barrett).

This is a guest post by Prof. David Yellen of the University of Miami Law School and former dean of that law school and two others. David has been deeply involved in ABA accreditation matters, in addition to other leadership roles.

It is a perilous time for the Council of the ABA Section of Legal Education. Its role as the national accreditor (for US Department of Education purposes) and approver (for bar examination eligibility purposes) of US law schools is being challenged. The Texas Supreme Court recently announced its “tentative opinion that the ABA should no longer have the final say on whether a law school’s graduates are eligible to sit for the Texas bar exam and become licensed to practice law in Texas.” www.txcourts.gov/media/1461357/259070.pdf. Several other states are considering similar actions.

To a large degree, the Council has brought these problems upon itself. Many of the current (and proposed) accreditation Standards are highly problematic. In ways large and small, the Council overregulates law schools, stifling innovation and imposing unnecessary costs. It is probably the most intrusive accreditor in the entire U.S. higher education landscape.  Nonetheless, I continue to believe that the profession, law schools and students are best served by a single accreditor/approver (at the moment, neither Texas nor any other state has proposed a workable alternative system of portability of bar examination eligibility), and I have serious doubts that any other entity will emerge as a better alternative to the Council.  Therefore, I would like to see the Council survive this challenging moment, and emerge as a better, leaner accreditor. In that spirit, I offer a few suggestions for steps that might reduce the growing momentum to displace the Council from its national role, and in the process, improve the Standards.

First, the Council should rebrand itself as the Law School Accrediting Board, or some other similar title. It is the Council, not “the ABA” that regulates law schools.  This is a common misunderstanding, as reflected in the phrasing of the Texas order. The Council operates almost entirely independently from the larger ABA, as is required by Department of Education rules. Given how unpopular the ABA is in certain segments of the country right now, diminishing the erroneous perception of ABA control could be good for the Council’s reputation.

This change would be consistent with other accrediting bodies. I serve as a public member of the Landscape Architecture Accreditation Board (LAAB). It operates within the framework of the American Society of Landscape Architects (ASLA), But in part because of the separate name, people don’t think or talk about ASLA accrediting landscape architecture programs.  Of course, landscape architecture is a much less contentious field than law and legal education, but the point still stands. 

Similary, medical schools are accredited by the Liaison Committee on Medical Education (LCME). LCME is sponsored jointly by the American Medical Association (AMA) and the Association of American Medical Colleges (AAMC).  It is as if the legal education accreditor was sponsored jointly by the ABA and the Association of American Law Schools.  Yet as far as I can tell, AAMC is truly perceived as an independent entity. 

Second, the Council should move towards eliminating the one way the larger ABA actually participates in the accreditation process.  Currently, changes to the Standards go to the ABA House of Delegates for review.  The House can concur in proposals or refer them back to the Council. If the Council resubmits the proposal, it goes back to the House a second time.  If the House again refers it back to the Council, the House’s role is complete.  If the Council approves the proposal a third time, it becomes effective without further review by the House.

This is an odd, and not very useful, process.  Most other accrediting bodies have nothing comparable.  If the ABA has a view on a Council proposal, they can participate through the notice and comment process. Eliminating the House of Delegates’ formal review would further emphasize the Council’s independence from the ABA. The Council should be judged on its own actions, not those of the larger ABA.

Third, and most importantly, the Council should publicly announce an intention to scale back unnecessary or inappropriate regulations. Accreditation standards should be limited to things that are virtually essential to a quality and honest program of legal education.  The Council’s job is to enable experimentation and evolution, not to drive change in a particular direction.  Too often the Council gives in to vocal and influential segments of the legal education community.  Many of these proposals may in fact be quite good for many or most law schools.  But the Council is making rules, not establishing best practices.  It is important to remember that a law school must be in full compliance with each and every Standard.  If one can imagine a high quality law school not doing a certain thing, that thing should not be a nationwide requirement.

The Council recently released a promising new document, the “Core Principles and Values of Law School Accreditation,” which could serve as the basis for this process. www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/2025/council-meeting/25-aug-core-principles-accreditation.pdf. It is by no means a perfect document (see Derek Muller’s cogent critique at https://excessofdemocracy.com/blog/2025/9/the-aba-is-inventing-new-principles-for-law-school-accreditation-quietly-abolishing-others) but it does reflect a level of regulatory modesty that is too often missing from the Council’s approach. The Council should rigorously review all of the Standards against the template established by the Core Principles document.  I believe that a fair-minded application of these principles would result in a significant reduction in Council regulation. In the end, I think the Standards would wind up looking a lot more like the minimalist Model Rule proposed by Muller.

The Council should also apply the Core Principles in selecting new members.  The Nominating Committee should make an effort to add several members who are committed to the principle of limited regulation.  People like Derek Muller and Dan Rodriguez, for example, could really change the Council dynamic.  There is a mechanism for people to seek election to the Council apart from the Nominating Committee route, but I am not sure that it has ever been utilized.  In part, that is because to vote on selections for Council membership, a member of the Section of Legal Education (any member of the ABA can join the section) must personally attend the ABA Annual Meeting.  The Council should broaden voting participation by removing the requirement of in-person voting.

A serious effort to reform itself could help salvage the Council’s role as the national accreditor law schools and principal gatekeeper for eligibility to take the bar exam.  Otherwise, the process of seeking alternatives to “the ABA” is likely to accelerate. Can the Council meet the moment?