A CONSTELLATION OF CONSTITUTIONS: DISCOVERING & EMBRACING STATE CONSTITUTIONS AS GUARDIANS OF CIVIL LIBERTIES.

• Author: Rush, Loretta H.

In the 1980s and 90s, a message to reinvigorate reliance on state constitutions gathered momentum, (1) producing a now-familiar refrain: state constitutional law plays an important role in securing the liberties that flow from federalism, and it deserves greater attention. (2)

Despite the swell of state constitutionalism in the late twentieth century, and notwithstanding academic and judicial attention to the topic since then, (3) appreciation of state constitutions hasn't attained a level of traction that reflects these charters' great value as guarantors of civil liberties.

Today, litigants still fail to bring or adequately argue state constitutional claims that offer potential relief. (4) Courts accordingly decline to clarify the nature and extent of state constitutional protections. And law schools still exclude state constitutional law from the standard curriculum, offering few courses to equip new attorneys with the knowledge and knowhow to identify and argue state constitutional claims effectively. (5)

As a result, powerful liberty protections sit latent from disregard. This creates a high risk that individuals' rights are trampled without redress--simply because the rightsholders or their attorneys didn't argue a state constitutional claim. In other words, state constitutionalism presents a use-it-or-lose-it situation: either use the state constitution or lose the protections it provides.

To be sure, the entire legal community is responsible for realizing the value of state constitutions. And I'll offer some ways actors in various capacities can fulfill this crucial obligation. But one thing judges can do is issue writings, in cooperation with law-review journals, highlighting the import of state constitutional law. This article seeks to be one of those contributions.

The immediate goal is to instill greater understanding of and appreciation for state constitutional law as a powerful protector of civil liberties. The intermediate goal is for state constitutional law to become more readily invoked by litigants, so that state courts may illuminate and apply state constitutions' shields against encroachment on rights. And the ultimate goal is for state constitutional law to better facilitate the beneficence of federalism while enhancing the development of constitutional law throughout the United States.

To those ends, this article begins by reviewing the roles that state and federal constitutional law play in federalism's diffusion of power. It next surveys various factors that contribute to the individual identities of state constitutions. Then, to illustrate similarities and differences among constitutions, it draws cross-state comparisons of state constitutions' origins, contents, and interpretations by respective supreme courts, anchoring those comparisons in Indiana constitutional law. And finally, it offers ways the bench, bar, and academy can embrace state constitutional law and appreciate the constellation of state constitutions that can shine as a result.

1. How STATE CONSTITUTIONAL LAW--THROUGH FEDERALISM--PLAYS AN INTEGRAL ROLE IN SECURING CIVIL LIBERTIES

   The importance of state constitutional law in protecting civil liberties is nothing new. When state constitutions were first adopted, their significance to people's rights was readily apparent, "[I]ndividuals looked to state constitutions and state courts, not the federal courts, for protection of their constitutional rights," and the contents of state constitutions fueled considerable debate. (6)

   But the landscape of American law has shifted over the years, obscuring some areas of state constitutionalism and raising new questions about its function and importance, particularly relative to federal constitutional law. (7) Scholars and jurists have offered helpful insights with empirical data, in-depth jurisprudential theories, and thorough inspection of state- and federal-law interactions. (8) These writings expose both the continuing importance of state constitutionalism and the compelling reasons to cultivate it in this day and age.

   I won't recapitulate in detail why state constitutional law deserves greater attention. But I'll reiterate some key points, for a couple of reasons. First, they simply bear repeating because the role of state constitutional law "in the struggle to protect the people of our nation from governmental intrusions on their freedoms" (9) remains underappreciated and precious liberties hang in the balance. And second, these points lay a foundation for perceiving a state constitution's place among other charters, which is a later focus of this article. (10)

   Starting with the most fundamental point, state constitutional law supplies a counterweight to federal authority." Just as separation and balance of powers among the three branches of government--executive, legislative, and judicial--guard against overconcentration of authority, so does federalism's diffusion of power between the federal and state governments.

   Federal and state government power is restricted by laws--the highest of which are the federal and state constitutions. For each constitution, the ultimate interpretive authority resides with the respective supreme court: for each state constitution, the state's supreme court; and for the Federal Constitution, the Supreme Court of the United States. (12) Since federal interpretive authority is concentrated in the one and only U.S. Supreme Court, and since rights "cannot be secure if they are protected only by... one court... a U.S. Supreme Court," state constitutions must be "strong centers of authority on the rights of the people," (13) counterbalancing the consolidated weight of federal constitutional authority. And since state supreme courts are the final word on matters of state constitutional law, they have a responsibility to regard and clarify the independent authority of their state constitutions. (14)

   This leads to a second, related point: to maintain the independence of their state constitutions, state supreme courts must clearly acknowledge protections that are adequate and independent of federal constitutional guarantees, thus allowing the state constitutions to counterbalance federal authority. In other words, when state constitutional grounds for a judicial decision are insufficient on their own--and the decision instead relies on federal law--the state constitution does not fortify federalism's design.

   The self-sufficiency and independence of state-law grounds for a decision must be clear. The reason lies in the U.S. Supreme Court's decision in Michigan v. Long. (15) In that case, the Court explained that if a judicial opinion on its face does not clearly indicate that the case was decided on an adequate state-law ground independent of federal law, then the U.S. Supreme Court will assume that "the state court decided the case the way it did because it believed that federal law required it to do so," and the case is reviewable by the U.S. Supreme Court. (16)

   Thus, when state constitutional decisions depend on federal law, decisional authority is funneled to the U.S. Supreme Court. This dependence may manifest in several ways: state courts may explicitly acknowledge reliance on federal constitutional law; they may interpret their state constitutional provisions "in 'lockstep' with federal court interpretations of analogous federal provisions"; (17) or they may fail to clearly base their decisions exclusively on separate, adequate, and independent grounds under state constitutional law. (18) As these practices strip a state constitution of its autonomous authority, they weaken the federalism framework that wards off overconcentration of authority.

   By contrast, state constitutional law that is independently decisive--without reliance on federal law--bolsters federalism's diffusion of power, strengthening its shield against domineering power. This does not mean that a state constitution will always produce a result different from the federal constitution--only that the result will derive from a different source of sovereign authority. (19)

   This brings up a third and final point: independent state constitutional law reinforces federalism in two dimensions. (20) It reinforces "vertical federalism"--the dispersal of power between the state and federal governments; (21) and it reinforces "horizontal federalism"--the dispersal of power among the states. (22) This happens because independent constitutional decision-making allows states to engage in cross-jurisdictional dialogue about how to interpret similar constitutional provisions. And in that dialogue, vertical and horizontal planes of federalism intersect.

   Specifically, when a state court interprets one of its state constitutional provisions differently from a similar provision in another constitution (state or federal), it invites other courts--state and federal--to consider that reasoning when construing their own constitutional provisions. (23) Courts can scrutinize, refine, reject, or adopt another court's reasoning based on the similarities and differences between their respective charters and those constitutions' historical underpinnings.

   In this vetting process, some reasoning will be adopted across state lines, while other reasoning will not. (24) Regardless of whether particular reasoning is adopted, independent state constitutional decisions serve a vital purpose when informing other courts' decisions about government power and constitutional protections: they function as cultivation centers (25) for the development of American constitutional law. In this way, they advance the collective endeavor "to form a more perfect Union." (26)

   Because state constitutions' independence reinforces both vertical and horizontal federalism, it plays an integral role in securing the blessings of liberty that flow from federalism's design. But while it is one thing to acknowledge the importance of this independence, it is quite another to explain...