By Gwyneth K. Shaw
“Berkeley Law Voices Carry,” hosted by Gwyneth Shaw, is a podcast about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy.
This episode features David A. Carrillo, a Berkeley Law Lecturer in Residence and the executive director of the California Constitution Center, a nonpartisan academic research center devoted to studying the state’s constitution and Supreme Court.
Carrillo, who earned a bachelor’s degree at UC Berkeley and three degrees — a J.D., Master of Laws (LL.M.), and Doctor of Juridical Science (J.S.D.) — from Berkeley Law, has just become the editor-in-chief of California Legal History, a book-length annual scholarly volume published by the California Supreme Court Historical Society, and joined the society’s board of directors.
The center holds regular events and sponsors scholarship, and Carrillo and center fellows frequently write amicus curiae briefs and op-eds. In partnership with the UC Law Journal, the center publishes SCOCAblog, which analyzes the Supreme Court of California and its justices, as well as cases and issues before the court.
What follows is an edited version of the conversation. Listen to the full episode below and visit the “Voices Carry” archive for all episodes. Note: This conversation was recorded before California voters approved Proposition 50, officially known as the Election Rigging Response Act, in November.
GWYNETH SHAW: For some background, tell me about how the California Constitution Center came to be, and some of the ways it’s become influential in the state.
DAVID CARRILLO: So it all got started back in 2008. Professor John Yoo and [California Supreme Court] Justice Danny Chou and I taught a one-off seminar on California constitutional law because at the time, I was looking at and working on some California con law issues in my practice. So we taught a seminar.
It wasn’t exactly the first of its kind, but previous editions of it had been few and far between and scattered among the various state law schools. And once we finished teaching that seminar, we started looking more broadly at how we could study the California Constitution and the state high court. We spent about four years refining the course and our thoughts about how best to approach studying California’s Constitution, and we wound up thinking of so many different projects and ways to approach it under that umbrella that we decided a center was the best way to approach it. And that’s how it got started.
GWYNETH SHAW: Why have a center devoted to the state constitution, and what are some of the ways that the center has become influential in the time since it’s been founded?
DAVID CARRILLO: Well, I think every state should have a center like this studying its state constitution. In terms of influence I don’t want to overstate things. We’re a very small center, we’re very niche, we have a very narrow focus that is only occasionally relevant in the public discourse.
But you know, on the other side of the coin, when state constitutional law in California is relevant to a public policy issue, there aren’t too many places to turn, and we’re one of those few. So in that context, the center’s goal is to be neutral, non-partisan, and a trustworthy academic resource on California’s constitution and the high court. That can mean supplying data and historical context about the courts for the media and public, or legal analysis to the courts and stakeholders, or just educating students and the public about how our state constitution works.
The reason I think every state should have a center like this is because obviously, every one of the 50 states has its own constitution — it’s required for admission to the union if you’re a state that joined after 1789.
And 13 of the states obviously pre-date the United States itself because they’re the ones who formed it. So there are13 state constitutions that pre-dated the 1789 Constitution that formed the United States, and in fact those early state constitutions were the models for the 1789 Constitution.
A lot of the guys who wrote the document at the Philadelphia convention had also written their state constitutions. So, both before the U.S. Constitution came into existence and afterwards, state constitutions have always been a primary source of law for governing every state. So I feel that if you want to understand American government you have to start with the states because that’s where it all began, and it’s still where most of the action happens on domestic law and policy.
GWYNETH SHAW: For those of us who haven’t read the California Constitution carefully, are there particular things about it that are different from other states or things that make it unusual?
DAVID CARRILLO: I like to start this part of the conversation by busting a few myths. California’s not the longest constitution in the world — I think that’s India’s. It’s not even the longest state constitution, which I think is Alabama’s. It’s probably not the most amended state constitution — Texas or Florida arguably leads us. And we don’t use the initiative the most, that’s Oregon. And we were not the first state to adopt direct democracy, even though we’re known for it. It was South Dakota that was first.
So, what is unique about California’s constitution besides our robust initiative system? We have a number of rights that are not in the U.S. Constitution.
We were the first state to include an explicit right to privacy in our constitution. We have a right to reproductive freedom, which got added fairly recently. We have a right to fish. California started out in 1850 with a right to separate property. We have a criminal Victim’s Bill of Rights. We have a right to public education, and we have constitutional provisions defining water rights. Those are all unique to California. And, of course, direct democracy. We use it a lot.
GWYNETH SHAW: You’ve become a trusted source for state journalists and national journalists covering California, particularly since the second Trump administration began. And you’ve recently co-authored some amicus briefs supporting Gov. [Gavin] Newsom’s lawsuit against the administration seeking a restraining order to return control of the state’s National Guard to the governor last summer.
What are some of the scenarios, as you’ve talked to these journalists who call you with questions that you’ve heard recently, that seem plausible in terms of California asserting its rights when it’s in tension with the federal government, and what are some things that you think are non-starters, even if you’ve heard a lot about them?
DAVID CARRILLO: I would divide this into three parts. There’s areas where states are much more obviously supreme in their spheres, there’s things that can go either way, and there’s things that, as you say, are arguably non-starters. Areas where the states have very significant local control that they can immunize from the federal government is anything having to do with their state constitution — which again is another good reason that I think studying them in general is a good idea, and studying them very closely right now, is a good idea.
So Proposition 1 recently added reproductive freedom rights to California’s constitution. That’s a perfect recent example of both something that California can do on its own writ that’s separate from and protected from federal law, and it’s also a good example of the people of California reacting to public events and saying, “No, you know, we don’t like the direction the federal government is going. We want to go in a different direction.” That’s the whole point of having a state constitution: it allows the states to do things like that, do it their own way, and not have to follow the national trends. So anything that a state wants to do with its state constitution is on very firm ground, especially in terms of enhancing rights for its citizens.
In the middle category of things that can go either way, the Guard call-ups that have been going on this year are a good example of that. They’re very fact-dependent. They’re very law-dependent. The scenario depends a lot on what provision of law is being used to justify the call-up. The Guard units are state units, they’re in California, they’re citizens of the state of California, and they occupy an interesting dual role. They’re both the California militia and also reservists in the U.S. military. They wear two hats, and which hat they wear at a particular time is very fact- and law-dependent. So it’s a particularly good example of something that can go either way, depending.
For the third category, things that are certainly not the best legal scenario for a state, immigration is a really good example. It’s expressly a federal power under the federal Constitution, so states have, at best, very limited legal authority over immigration.
What they can do, though, is they can control their own people. Portland, for example, is using zoning to try to control where ICE can have its facilities within the city. So limiting where and how federal government facilities can be located, that’s one way to do it.
Sanctuary cities policies have been fairly effective. Limiting local government and local law enforcement aid and cooperation with federal law enforcement on immigration is another way to go.
Obviously, the flip side of this, though, is that states can go the other direction. Florida, I think, actually has a state statute that requires its local law enforcement to cooperate with federal immigration authorities. So it really depends on the context. A state’s power is highly context-dependent, but there certainly are areas where states are ascendant, just like there are areas where the federal government is ascendant, and there’s a middle ground.
GWYNETH SHAW: Is there a historical precedent for particularly the California governor engaging in some of these legal arguments with the federal government? Has that happened before?
DAVID CARRILLO: Well, in general, the states and the federal government fight all the time. Legal disagreements and policy conflict between the states and the federal government is as old as the nation. It predates the nation.
The whole idea of having a federal government at all was pretty dicey back in the Articles of Confederation period. In many ways, states and the federal government debating policy outcomes has always been with us. It will always be with us. I think it’s integral to the American constitutional design.
To illustrate with a recent example, when President Obama was in office, I think it was the attorney general of Texas at the time who was quoted in the newspaper, saying something to the effect of, “What is my job? I wake up every morning and I sue the federal government.”
Now, there’s a different administration and the political roles are reversed, but that’s essentially what [California] Attorney General Rob Bonta’s job is.
GWYNETH SHAW: You’re the new editor-in-chief of California Legal History and you’re taking over from retired California Court of Appeal Justice George Nicholson. Can you talk a little bit about the journal and Nicholson’s tenure, which I understand has been distinguished?
DAVID CARRILLO: I first have to say that Justice Nicholson is an incredible guy. He’s had a towering career and he’s left me some big boots to fill, and I’m honestly a little nervous about doing a good job. Him retiring from this is a loss to the journal.
But the journal’s been around for some years now. It’s one of two publications that the court’s Historical Society puts out. It’s book-length and comes out once a year. The journal’s purpose is to study and promulgate articles on California legal history, which is a pretty big umbrella, much like my center.
It’s anything about California’s court system, judges and justices, current and retired, events, bench and bar-related, anything having to do with California legal history. It’s a pretty big umbrella.
GWYNETH SHAW: Do you have particular goals as editor-in-chief? Is there anything that you want to change or some issues you’d like to highlight?
DAVID CARRILLO: The journal starts off with sort of a baseline of things that it runs every year. There’s a student writing competition, and if there’s any students listening, I highly encourage you to submit articles for consideration in the writing competition. It is typically not particularly well-attended, so your chances of winning are pretty high, and there’s a monetary prize for first and second place, and you get a picture with the chief justice of California. It’s a pretty good shot. There’s also typically an oral history of a recently retired California Supreme Court justice.
Beyond that, I was thinking about tackling it topically. One of the first things I’m going to do is try and put together an edition that mostly focuses on water law. It’s a big issue in the state.
It’s a big federalism issue. Climate change is going to make it even more of an issue. And there’s one particular justice on the California Court of Appeal who’s been particularly influential in shaping modern water law, and I think the edition is going to center around him and his legacy.
The National Guard is another topic that’s current and topical and interesting and important, so doing a history of California’s Guard units and the legal issues around them, I think, would be really interesting. And I’m sure I’ll think of other things. But that’s the current working plan.
People can submit materials for consideration at the California Supreme Court Historical Society’s website.
GWYNETH SHAW: One particularly hot topic at the moment is redistricting in California and elsewhere. Can you talk about the history of redistricting in California and what you think about Proposition 50?
DAVID CARRILLO: The history of redistricting in California is a response to legislative bungling. For many years, California’s legislature was in charge of redistricting.
And let me just bracket here what redistricting is. The way it works is that we elect representatives to the state legislature and to Congress, and those representatives get elected out of districts. And those districts have to be drawn on a map to include a certain number of voters so that everybody who lives within a district knows who their representative is, either in the California legislature or in Congress.
Well, the population moves around. People move. People get born. People die. People become eligible to vote. People move out of state. So, every 10 years, we have a national census. It’s mandated by the Constitution. And redistricting — drawing those maps or redrawing those maps — is tied to that census.
You count all the people in the country, and based on population changes, states are allocated a certain number of Congressional seats. But it’s usually up to some political power in a state to take that number of seats and distribute them throughout the state. Some states are low-population: Wyoming, for example, has one district for the whole state.
California’s the other way around. We’re a very large state with a big population, so we have lots of districts. And California, for a long time, like most states for a long time, gave the power to draw those lines on the map to create the district to the legislature.
That led to two problems in California, and arguably elsewhere in the nation. One was that when you have politicians drawing the maps for the districts that they will get elected from, it creates a self-interest problem, and that led to a problem called gerrymandering. Legislators have incentives to draw districts that benefit either their party in general or them specifically. It’s a fox guarding the henhouse problem.
The other problem in California was in two particular decades, the legislature couldn’t reach consensus on a map, and they couldn’t get past their own internal voting threshold for it. So there was no map, which is a massive problem for a number of reasons. And in both instances, the California Supreme Court had to step in and draw the map themselves. And none of that is the way that should go. Finally, the voters got fed up, and in 2008, they created the Citizens’ Redistricting Commission.
It was so successful that a couple of years later, the voters expanded its power to also include Congressional districts. For the last two cycles — in 2010 and in 2020 — the maps were drawn by this independent redistricting commission.
And when I say independent, I mean it. The rules are quite strict, to the point that basically if you’ve ever given money to any political party or candidate or issue ever, you were barred from the commission. These are people who are very independent, they’re very nonpartisan, and they care deeply about this redistricting issue. Their maps have been upheld as fair by the courts.
Polling indicates very broad public support for the commission. It’s all in all been a very good solution to a very bad problem that the legislature proved that it was not good at.
Now, there’s a broader conversation about redistricting on a national scale. And Proposition 50 asks the voters to not abolish but put on pause for three cycles this redistricting commission and to give that power to draw those lines back to California’s legislature.
GWYNETH SHAW: Understanding that this year’s push in California is in response to pushes in other states, how should California reconcile a good policy proposal and a good policy idea that’s been put in place with other states that are throwing out their own rules to do a redistricting mid-cycle?
DAVID CARRILLO: It’s a difficult question, and a lot of it comes down to how you look at it and what you’re focused on. But by the time this airs, it will have already happened one way or the other.
The argument in favor of it is — and you have to pick your metaphor — if the other side’s going to fight dirty, you have to, too. Don’t bring a knife to a gunfight. If other states are going to redistrict their maps, to gerrymander them, that would drive seat pickup advantages for the Republicans. And if the Democratic states don’t do that, they’re already at a disadvantage. The other side is being unfair and playing dirty, and the only way to counteract that is to do the same thing. That’s the argument in favor.
The argument against it, though, I think, is in two parts. One is that it arguably sacrifices a good government gain, this independent commission that was hard fought and solved a very particular California problem. And it was a very good solution that we would be giving up for at least the next three congressional cycles and potentially permanently. There’s no reason the legislature can’t come back and say, “Hey, you know, can we make this permanent? This is going well. Why don’t you just let us keep doing this?”
And then we’re back where we started, and this whole commission thing was arguably a waste of time or a waste of effort, or a missed opportunity. That would be a shame because it’s been very successful and very effective.
You could make a reasonable argument for giving all that up to achieve a larger advantage in the national process if that was actually possible, but it’s probably not. There’s an extremely lengthy and complicated explanation for this, but it essentially comes down to if you look at the map and start eliminating places that don’t have party control or don’t have split delegations or are prohibited for some reason or another from redistricting right now or it’s politically impossible. You wind up with a scenario where Texas and California cancel each other out, and that’s assuming Prop 50 did pass. So that’s a net zero.
The only other states that are still on the map all add up to the Republicans winding up with a positive gain. The end result of this whole process, even if we gerrymander the heck out of California, is that Republicans still wind up controlling the House and by a wider margin.
So the question would be if that’s the likely end result of this whole process, why would we shoot ourselves in the foot and get rid of the commission that has been so effective for California for nothing, for no gain at all?
GWYNETH SHAW: Are there other things sort of on the horizon for California, legally, that you think are going to come into tension with the federal government as we move forward?
DAVID CARRILLO: Definitely. On any day that ends in Y, there will be such things. I can’t tell you what they will be because so many of the things that have come up in the last six months or so have been unexpected, to say the least. And so the only thing that I would be confident about now is some other unexpected thing will happen, and I would not want to even try to predict what that would be because it would be wrong.
GWYNETH SHAW: Let’s go back to the center and your role at the law school, and really the law school’s role in California at this particular time. Dean Erwin Chemerinsky talks a lot about the public mission of the school and the center is obviously something that fits into that. What do you think the role is for centers like yours and for lawyers like yourself and professors like yourself in educating students at this particular time and creating lawyers who are moving out into the world?
DAVID CARRILLO: I think that’s arguably different questions. For students, the role that my center should be playing is getting them to think, teaching them how to think critically, how to evaluate how to find trusted sources of information and evaluate them, and come up with a reasoned argument, one way or the other.
For those outside, we’re here to be a supportive partner. Amicus briefing is one obvious example of that. So if the Attorney General or another party has an issue that’s relevant to California constitutional law, I want to get involved in those questions just like the Death Penalty Clinic would want to get involved in issues that are under its umbrella.
To me, it’s a high form of praise when a party reaches out and says, “We have this case and it’s in your area, would you look at it and consider coming in and saying something about it?” That’s a way to be helpful, it’s a way to be useful, it’s a way to participate in the conversation in a beneficial way, I think.