On the received wisdom in federal courts.

AuthorLee, Evan Tsen
PositionFederal court policy that state courts should hear constitutional cases

The received wisdom in federal courts law is that the United States Supreme Court should actively preserve the state courts as an important forum for the adjudication of federal constitutional claims.(1) According to this wisdom, the Court must actively maintain a balance in the allocation of constitutional litigation between state and federal courts. Left on their own, many federal constitutional claimants would elect litigation or relitigation in a federal forum. The delicate balance between state and federal courts would be upset. Informed by this wisdom, the Court has built several important doctrinal walls around federal courts, including the rules barring federal courts from enjoining parallel actions in state courts,(2) the rule according state court judgments preclusive effect in federal courts deciding civil rights claims,(3) and the increasingly restrictive doctrines of federal habeas corpus.(4) The commitment to channel constitutional litigation into state court has even prompted the Court to read the vast majority of procedural due process claims out of the Constitution, leaving them outside federal cognizance.(5) Although some decisions of the Warren Court appeared to break with the received wisdom, permitting many litigants to opt for litigation or relitigation of their federal constitutional claims in federal court,(6) it is now clear that the Warren Court only temporarily interrupted the ancien regime. The Burger and Rehnquist Courts have renewed the traditional commitment to maintaining a quantitative and qualitative balance between state and federal courts as arbiters of federal constitutional claims.(7)

A variety of reasons have been invoked to support this program of maintaining balance. One is positive law. In each of the above-mentioned doctrinal areas, there are at least a few hoary cases supporting restrictions on access to federal court.(8) Another reason is historical. Article III of the Constitution does not itself require the creation of lower federal courts.(9) Therefore, the thinking goes, the Framers must have believed that state courts would be the arbiters of most federal constitutional claims.(10) Still another reason is practical. There exists a widespread belief that the federal courts are overloaded with cases.(11) Shunting many federal claims to the state courts helps relieve this congestion. A final reason to maintain a balance in the allocation of federal constitutional claims between state and federal courts grows out of normative political philosophy. Nurturing the strength and sovereignty of state judicial systems is considered a good thing because strong state courts can act as a powerful brake on an overreaching federal government or federal judiciary. State court practice in federal constitutional litigation must be kept strong so that state courts will be there to protect individual freedom when all else fails.(12) Moreover, state court practice provides the nation with "fifty laboratories" that might give birth to new ideas or procedures promoting the cause of liberty.(13)

In this Article, I do not address the legal, historical, or practical arguments that might support the Supreme Court's program of balancing the allocation of constitutional cases between state and federal courts. Other scholars have thoroughly analyzed those issues elsewhere.(14) Rather, I wish to examine the normative political philosophy that underlies the received wisdom. Are the defenders of the received wisdom on solid ground when they say that maintaining this balance between state and federal courts promotes the cause of individual liberty in America? Should we really take comfort in the knowledge that state judicial systems are innovating new ideas and procedures that may lead to greater individual freedom from government oppression? Many, if not most, judges and scholars seem to assume that the answers to these questions are unproblematically affirmative.(15) The purpose of this Article is to test the strength of those assumptions.

This Article proceeds in three parts. First, I briefly describe the social and political values upon which my analysis is based. Whether a particular idea or system is normatively attractive depends largely on the norms against which it is judged. My normative analysis is based on the assumption that, in the abstract, the preservation of individual liberty and dignity is accorded a privileged position relative to collective needs (such as social order, public health, material well-being, and protection of morals). Of course, I do not mean that every claim of individual right must prevail over any state interest. I simply mean that the playing field is tilted in favor of the individual, such that government is always fighting an uphill battle to justify incursions on individual freedom or dignity. Moreover, my analysis is based on the notion that evaluations of claims about individual freedom are to be viewed from the perspective of the individual, not from the standpoint of society. We may not validate a claim, for example, by pointing out that it gives very great freedom to a large number of people in society, while enslaving only a small number. Proposals to maximize individual freedom must be evaluated from the standpoint of those whose freedom fares worst under the proposal. I refer to this entire package of assumptions as the "individualist premise."(16)

Part II of the Article offers a straightforward critique of the received wisdom. Here I argue that strengthening state constitutional practice is not a costless venture. By channeling constitutional claims to state courts, we endanger the rights of some individuals today so that we can better protect the rights of others in the future. This is the sort of gambit that ought to be disfavored, given our system of values. For precisely the same reason, we should be uncomfortable with the idea of shunting constitutional claims to state court for the purpose of having "fifty laboratories" develop rules that better protect individual liberty.(17) I do not deny the possibility that individual freedom, in the aggregate, benefits from doctrinal innovations that grow out of constitutional litigation in the various state courts. It is, however, inconsistent with our values to experiment with the liberty of individual citizens. Providing the state courts with additional constitutional claims risks sacrificing individual liberty in some localities for the prospect of increasing individual liberty in other localities. The liberty of some is gambled with, in the hope of increasing the total amount of liberty of others in the system.

Part III of the Article attempts to make an affirmative case for the normative attractiveness of a system that generally guarantees federal constitutional claimants at least one full hearing in federal court. Such a system runs strongly counter to the received wisdom because it makes no provision for maintaining a balance of federal constitutional litigation between state and federal courts. If federal constitutional claimants were overwhelmingly to opt for litigation or relitigation of their claims in federal court, state court dockets might be emptied of certain types of constitutional cases. Moreover, many state court judgments could be effectively undone by federal court relitigation. Part III offers an argument for why we should nonetheless prefer such a system over the present system, at least from the standpoint of pure political philosophy. Legal, historical, and practical considerations may well make a system that guarantees one hearing in federal court impossible. If such a system is philosophically preferable to the received wisdom, however, then we may at least want to approximate that system as best we can.

It is important to note the structure of my argument. Parts II and III are logically dependent on the conclusions reached in Part I. That is, if one disagrees with the premises asserted in Part I, then the rest of this Article can have no persuasive force. Parts II and III, however, are logically severable from one another. One could agree with my negative critique of the received wisdom without acceding to my affirmative case for a system guaranteeing a plenary hearing in federal court. It is possible to conclude that the received wisdom is flawed, but that I have failed to make out a case for my chosen alternative.

  1. INDIVIDUAL RIGHTS AND COLLECTIVE NEED

    One of the most distinguishing features of a western liberal democracy is its solicitude for the individual. In the liberal state, individual citizens generally are not expected to make heroic sacrifices for an ultimate deity, the state-sponsored church, a dictator, the fatherland, the proletariat, or the greater good. The liberal state takes seriously its obligation to treat individuals as ends in themselves, rather than as means to greater ends.(18) With its commitment to the protection of individual rights and individual autonomy, the liberal state necessarily rejects any full-blown version of utilitarianism.(19) The liberal credo is anathema to the notion of maximizing utility without regard for the separateness of individuals. Society is not just one huge, undifferentiated utility pool. Individual identity matters.(20)

    What I have just described, of course, is more a caricature than a portrait of any existing society. Even the most liberal states regularly require individual citizens to sacrifice for the collective good. The progressive income tax appropriates property from wealthier individuals and redistributes it (through many intermediaries) to the less wealthy. Regulatory schemes limit individual freedom in the name of public safety or health, protection of the environment, proper functioning of the marketplace, and other community goals. It cannot be said that liberal states only ask for relatively trivial sacrifices from their citizens. In time of war, liberal states have in the past...

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