The once and future constitutional law: on the law of American state constitutions.

• Author: Friedman, Lawrence M.
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

Many years ago, Massachusetts sought to ensure that male citizens fulfilled their militia service by authorizing company clerks to bring suit against those who failed to appear on muster day. In one such proceeding, a justice of the peace found against the defendant and refused him an appeal. The Court of Common Pleas nonetheless decided to hear the case and ruled for the defendant, at which point the plaintiff sought relief from the Massachusetts Supreme Judicial Court. Before the Commonwealth's highest court, plaintiffs counsel relied upon a state law providing that "no appeal should be allowed to either party from the judgment of a justice of the peace" in militia cases. For his part, defense counsel maintained that the law violated his client's constitutional right to a jury trial.

The Supreme Judicial Court in Mountfort v. Hall (1) sided with the plaintiff. As one judge reasoned, "[t]he constitution has not secured the right of appeal in any case; that is left wholly to the legislature." (2) Thus the court rejected the defendant's state constitutional argument. The year was 1805, decades before the Fourteenth Amendment and the incorporation of the Bill of Rights against the states, when a defendant seeking to challenge state action could rely only upon state constitutional protections. It was a time, moreover, when the prospect of judicial review of legislative acts in federal courts was still a relative novelty, Marbury v. Madison (3) having been decided just two years earlier; yet the justices in Mountfort recorded no doubts about either the court's authority or its ability to determine whether a duly enacted law conformed to the dictates of the Massachusetts constitution.

Two hundred years later, it is a different story. Today, the federal constitution dominates the rights landscape. As Robert Williams has put it, state courts today operate in "the glare" of the U.S. Supreme Court when it comes to interpreting state constitutional provisions protecting individual rights and liberties. (4) Though the "new judicial federalism"--the phenomenon of state courts independently considering the reach of individual rights provisions under state constitutions--is no longer quite so new, lawyers and judges continue to struggle with what to make of state constitutional rights provisions in specific cases. They often rely, in whole or in part, upon the doctrinal rules articulated by the U.S. Supreme Court in like cases, notwithstanding the urging of proponents of independent state constitutionalism, like Professor Williams, to take the interpretation and implementation of state constitutional protections as seriously as the interpretation and implementation of their counterparts in the Bill of Rights. The sustained consideration Williams has given this project and all matters state constitutional is reflected in The Law of American State Constitutions, (5) a volume that will likely serve as the most accessible and comprehensive resource on state constitutions and state constitutional law for some time to come.

Since its publication in 2009, Williams' book has attracted a great deal of positive attention, with commentators praising many of its varied contributions to our understanding of state constitutional law. (6) In particular, reviewers have focused on Williams' treatment of the origins, evolution, and methodology of the New Judicial Federalism. (7) The story of the New Judicial Federalism begins in the 1970s, after the Warren Court's rights revolution, when U.S. Supreme Court Justice William Brennan in the pages of the Harvard Law Review encouraged lawyers to rediscover their state constitutions as sources of individual rights guarantees in cases in which no protection would be found in the federal constitution. (8) The story continues to this day, with scholarly efforts aimed at developing innovative interpretive approaches to, and theories of, the practice of interpreting and implementing state constitutional rights provisions."

The story of the New Judicial Federalism is one worth telling, and I address some of Williams' conclusions about its significance below. First, though, I provide an overview of The Law of American State Constitutions, to convey some sense of its scope and its utility as a resource for lawyers and judges. Next, I turn to Williams' consideration of state constitutional interpretation outside of the individual rights context, when recourse to federal doctrinal concepts may not be an option. Here, I focus on Williams' discussion of judicial construction of structural provisions that guide the process of political decision-making, an issue without parallel under the U.S. Constitution. Finally, I return to the subject of rights interpretation by state courts operating in constitutional space dominated by the Supreme Court. Here, I examine the value of independent state constitutionalism in light of Erwin Chemerinsky's recent argument that state constitutions are "a second-best alternative for advancing liberty and equality." (10)

1. OVERVIEW

   The Law of American State Constitutions is, first and foremost, a treatise. I mean this as praise. Given the growing complexity of almost any given area of law in the modern day, it is no mean feat to capture an entire field in one volume, and to set out its many dimensions in a manner that is both approachable and scholarly. Williams has organized his discussion of the dimensions of state constitutional law into five parts, ranging from the history and nature of state...