ABSTRACT
In 1973, the Supreme Court's Rodriguez decision sustained unequal funding of a state's public schools under the Court's formula of equal protection for fundamental rights. Thereafter challenges succeeded under the state constitutions, where they should have begun, but they still carried the Fourteenth Amendment baggage. Periodic reports on new state constitutional cases understandably concentrate on holdings, not reasons, much like periodic reports on tort cases or other common law litigation. In the course of deciding the merits, some opinions ignore the essential difference between constitutional law and common law: A constitutional issue presupposes that someone else has made a law. A demand that each state's court reach whatever desired result courts in other states have reached, in the common law manner of generic judge-made formulas, denies significance to the lawmaking act of choosing and adopting the constitutional provisions on which claims of unconstitutionality rest.
