It is a great pleasure to return once again to Stanford Law School, where in 1964 a J.D. degree launched me into a seven year legal career as a California Deputy Attorney General and what, to this point, has been an almost thirtyeight year career as a judge.
The class that I most enjoyed in law school was Constitutional Law, and I was fortunate to have Gerald Gunther as my professor. The educational experience provided by that class no doubt had a substantial bearing upon my decision to enter the field of public law. [...]
Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. Even where moored to the text of a constitution, social and economic rights remain controversial. [...]
Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (“substates”) have their own constitutions (“subconstitutions”). One can call this constitutional arrangement “sub-national constitutionalism,” or, for short, “subconstitutionalism.” [...]
The year is 1993 and the Hawaii Supreme Court has just declared—as a matter of state constitutional law—that the state prohibition of same-sex marriage constitutes gender discrimination. Within a few years, thirty-five states enacted laws prohibiting the recognition of same-sex marriages and Congress, responding "to a very particular development in the State of Hawaii," enacted the Defense of Marriage Act. In Hawaii, voters overwhelmingly approved a state constitutional amendment authorizing the legislative prohibition of same-sex marriage. [...]
The story of marriage equality under state constitutions is quite mixed. The story begins when the Hawaii Supreme Court in Baehr v. Lewin indicated that strict scrutiny should be used for the prohibition of same-sex marriage on the ground it was gender discrimination. The court explained that it was solely a person’s sex that kept him or her from marrying someone of the same sex. The Hawaii Court remanded the case to the lower court for the application of strict scrutiny under the Hawaii Constitution’s use of this test for gender discrimination. [...]
California is ungovernable. The state’s annual budget charade might give one the impression that its governor and legislature are to blame. But in truth, it is out of their hands. Decades of “ballot-box budgeting,” where voters pass taxing and spending legislation by citizen initiative, has put more and more of the state’s budget out of the legislature’s control. [...]