Realigning the constitutional pendulum.

Author:Steele, Myron T.
Position:Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

    The United States Constitution--an instrument modeled after state constitutions (1)--uniquely creates a federal government of limited and enumerated powers, leaving general police power to the individual states. (2) This governmental framework, if properly carried out, strikes the appropriate balance of power. With the federal government supervising matters of national concern, states are able to respond effectively and efficiently to local problems. (3) What's more, this system of government suitably promotes state experimentation--a necessary ingredient to economic and social amelioration. In this article, we argue that federal courts, through their broad interpretation of the federal Constitution, have deleteriously altered this power equilibrium. We refer to this equilibrium as the "constitutional pendulum," and with each broad federal constitutional interpretation, the constitutional pendulum becomes misaligned.

    We begin by briefly discussing the key components of the federal constitutional framework and the benefits of state experimentation. We then highlight some of the ways in which states, through their individual constitutions, have benefited from this system of government. Next, we argue that a broad interpretation of certain federal constitutional provisions improperly shifts power to the federal government, thereby stifling state innovation. We posit that more narrowly interpreting the federal Constitution swings the constitutional pendulum back to its rightful place, distributing power appropriately between state and federal government. To illuminate this point, we analyze a recent Third Circuit decision (decided by a divided three judge panel) interpreting (albeit incorrectly) the United States Constitution's First Amendment right of public access: Delaware Coalition for Open Government, Inc. v. Strine. (4)


    1. Federal Constitutional Framework: "Splitting the Atom of Sovereignty"

      There are no greater federal constitutional components than the paramount separation of powers and federalism principles. (5) These principles permeate throughout the federal Constitution, creating a system of government with both vertical and horizontal separateness. (6) Horizontal separateness (separation of powers) ensures appropriate checks and balances among the federal government's three branches: the executive, legislative, and judicial. (7) This article, however, focuses on vertical separateness (federalism)--the division of power between the state and federal governments. (8)

      The United States Constitution's Framers ingeniously "split the atom of sovereignty," separating state and federal government. (9) In establishing this institutional arrangement, the Constitution's Framers "rejected the concept of a central government that would act upon and through the States," deliberately departing from these models to form "a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." (10) "With respect to both federalism and separation of powers, then, the structure--as revealed by the explicit text and implicit plan or design of the Constitution--is paramount." (11) The Framers carefully crafted the federal Constitution to vest in the federal government only those limited and enumerated powers over matters of national concern, such as providing for the common defense. (12) Ostensibly, the Framers deemed it necessary that the states retain "residual sovereignty" (13) over matters of state and local concern, and even James Madison recognized that the federal government derives its power from the citizens of the several states. (14) Moreover, James Madison, in The Federalist No. 45, emphasized the importance of having a federal government with limited power and the resulting benefits of state, as opposed to federal, experimentation:

      The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. (15) Through this constitutional framework, states, which derive their power from their individual constitutions, (16) are able to enact laws and amend their respective constitutions to respond to their citizens' particular issues, needs and desires. (17) This concept is underscored by the well known maxim: what's good for some is not always good for others. (18) As discussed below, there are numerous benefits to state experimentation and, as detailed in subsection (c), states have undeniably benefited from (and attempted to benefit from, if not for federal intervention) this institutional scheme.

    2. Benefits of State Experimentation

      Justice Louis D. Brandeis famously opined: "It is one of the happy incidents of the federal system, that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (19) Brandeis' view concerning state experimentation illuminates our position that a narrow interpretation of the federal Constitution encourages creative state policies, which, in turn, leads to optimal nationwide productivity and public policy. (20)

      Allowing states to serve as political "laboratories" is beneficial for a myriad of reasons. First, state governments are in the most advantageous position to understand which policies are (presumably) best for their individual constituents. (21) Unlike the national government, smaller state institutions are more capable of quickly adapting to changes in economic climate and are best able to implement policies to advance the unique social values held by their respective citizens. (22) In like manner, state constitutions, in contrast to the federal Constitution, are more easily rewritten and amended to reflect political and social ideals of the time. (23) Indeed, "piecemeal diffusion of new policies ... facilitates gradualism and, therefore, feedback and institutional learning." (24) This point is best evidenced by the fact that many national policies--such as health care reform--are modeled after state initiatives. (25) Just as national policies are modeled after state initiatives, so too are other state practices. (26) By extension, this gradual, experimental, approach to policy making ensures that the inevitable political falters will occur "without risk to the rest of the country." (27) Our nation's founders clearly contemplated this increased national risk and used horizontal separateness to quell these dangers. (28) States and the federal government can therefore remold their policies by looking to the success and failures emerging from state initiatives. (29)

      Another often ignored benefit to Brandesian experimentation is increased political and judicial transparency and accountability. (30) As we recently witnessed in the federal government's recent shutdown, failed federal reform inescapably leads to self interested political finger pointing. (31) Unlike federal politicians, state lawmakers are more closely connected to their constituents and, therefore, more exposed to their supporters, critics, and other state coordinators. (32) This transparency leaves little room for elected state officials to hide from pundits and, in turn, creates a personal incentive to advance presumably valuable social and economic initiatives. (33)

      States may also achieve political transparency and accountability through the distribution of political power set forth in their individual constitutions. (34) For example, a state's constitution may provide less executive and more legislative power. (35) In like manner, many states constitutionally embrace accountability in the judicial arena. (36) Unlike federal judges, most state judges do not possess life tenure, (37) making them more accountable to their state's citizens for legally incorrect rulings. (38) While we recognize there are some perceived benefits to judicial life tenure, a politically balanced group of state judges with limited terms (as is the case in Delaware's judicial system) (39) most effectively engenders legally correct rulings while still protecting the minority from the tyranny of the majority.

    3. State Constitutional Jurisprudence

      Despite decades of political power shifting away from the states in favor of the federal government, states, through their individual constitutions, have utilized the advantages of state experimentation discussed above.

      i. Models of State Constitutional Analysis

      Before exploring some of the ways in which states have benefited from constitutional experimentation, it is important to note the four basic models of state constitutional analysis: (1) the primacy model; (2) the interstitial model; (3) the dual sovereignty model; and...

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