The renaissance in state constitutional law: there are a few dangers, but what's the alternative?

Author:Shepard, Randall T.
Position:State Constitutional Commentary

The renaissance in state constitutional law is nearly in full bloom. Lawyers are becoming increasingly effective in asserting state constitutional claims, having been prodded by judges and commentators to consider state constitutional arguments on behalf of their clients.(1) Better-informed advocacy has in turn provided state court judges with increasingly well-reasoned grounds from which constitutional doctrine may grow.

The dialectic methodology inherent in our common law system, sacred to John Stuart Mill's conception of political community and to the philosophical foundation of current federal First Amendment free speech doctrine,(2) appears to be working its magic within the context of state constitutional jurisprudence. Legitimate decisionmaking frameworks, founded upon the text of our state constitutions and growing from the combined work of lawyers, students, scholars, and judges, are becoming more apparent each year.(3)

To some observers, however, the current dynamism of state constitutional law appears ungrounded. This perception gives rise to suggestions that all state constitutional jurisprudence is devoid of interpretative legitimacy.(4) My own retort to this and other criticisms is that the difference between legitimate and illegitimate state constitutional decisionmaking is not so much a matter of how one perceives the current relationship between state and federal governments, as it is a matter of maintaining an internal sort of interpretative integrity. Legitimate renaissance in this field depends on the willingness of courts to engage in vigorous and honest legal research and writing, oriented towards the text, history, and case law of the state constitution itself.(5)

This view stems from a belief that the primary creative force in state constitutional adjudication arises from the duty of trial and appellate judges to decide questions of law placed before them, rather than from exhortations by figures like Justice William Brennan, who emphasized individual rights as an end to be pursued for their own good, with state constitutions serving as a convenient means to that end.(6) Stated differently, because state court judges can hardly stipulate the non-existence of the organic instruments which empower them to act as judges, they really have little option but to strive to maintain the interpretative integrity of text and case law through vigorous research and writing,(7) i.e., the stuff which lies at the heart of all legal interpretation.(8)

If the key to legitimate interpretation is indeed within the grasp of judges, a survey of opinions dealing with state constitutional law should reveal that some opinions do indeed appear to be more true to the text of the respective constitution and the history and culture of the respective state involved than do others.

I will begin here, then, by summarizing recent developments and criticism in the area of state constitutional law to provide a context to frame the discussion that follows.(9) In Part II, I highlight some important opinions to demonstrate that there actually is a difference between legitimate and illegitimate state constitutional decisionmaking, and that the source of the difference often lies within the realm of interpretative integrity.(10) Finally, in Part III, I examine the limited alternatives state judges might take if they were to shun the current renaissance in state constitutional interpretation.(11) These alternatives are few and disreputable.


    Justice Robert Utter of the Washington Supreme Court has helpfully reminded us that the development of constitutional law, whether state or federal, is a jagged process.(12) "New judges, fragile majorities, poor facts, and still developing historical and legal scholarship" are all uncertain variables which sometimes lead to unstable law.(13) Still, it is apparent that the stock of intellectual capital capable of deployment in this endeavor is growing exponentially. The resources available to lawyers and judges have expanded rapidly during the last decade, and we have reached a point where enough information is available that the difference between good writing and research and bad is often apparent. A short list of sources available to judges and litigators should prove this point: hundreds of appellate opinions dealing with state constitutional law are handed down by state courts annually; the National Association of Attorneys General has published a quarterly State Constitutional Law Bulletin and an annual Emerging Issues in State Constitutional Law since 1988; the number of published symposiums on state constitutions is staggering;(14) the Rutgers Law Journal, the Temple Law Review, and the Albany Law Review publish annual issues on state constitutional law; and, finally, state constitutional law treatises, case books, "nutshells," and "reference guides" are becoming available to practitioners in nearly all of the fifty states.(15)

    The movement still retains its gadflies, of course, and we should be glad that they exist to scrutinize the direction and substance of state constitutional jurisprudence.(16) The criticisms of today often metamorphose into the solutions of tomorrow; one only need compare Holmes's famous dissents of the early twentieth century with today's federal jurisprudence to recognize this fact. The continuum of current criticism ranges from the purely political to the profoundly theoretical. Some quick examples should suffice to paint an adequate picture of the various views taken by those who are unhappy or unimpressed with the current status of state constitutionalism.

    The most numerous of those who detract from the current movement are the practicing lawyers and state citizens who remain oblivious to state constitutions as currently meaningful documents. Ten years ago, fifty-two percent of persons polled were unaware that their state had its own constitution.(17) While the level of public awareness may well have risen as increased litigation has produced cases having greater effect on how state governments work, the absence of interest among citizens in their own state constitutions is often cited by scholars as the primary reason state constitutions should not be considered as "constitutions" in the same way that our Federal Constitution is.(18) Lawyers, who might be expected to inform citizens of the present potential inherent in state constitutions, also appear to be all too ill-informed about the substance of their state charter.(19) In their defense, of course, one need acknowledge that classes on state constitutional law are not a ubiquitous feature of American law school curricula.(20)

    Friction between state courts and other branches of government often result in politically motivated criticisms of state constitutionalism. Governors and legislators are sometimes surprised to find that they are restrained from acting as they would like, or even required to perform a constitutional duty of which they had been previously unaware. Claims of judicial activism sometimes closely follow.(21)

    Among scholars, there appear to be three prominent methods employed to criticize state constitutionalism. The first is quantitative. The author finds as many cases as possible which he or she believes are justiciable on state constitutional grounds, and then analyzes what state appellate courts actually do when confronted with such ripe circumstances. The underlying hypothesis of this method appears to be that courts themselves indicate the inadequacy of their constitutions when they fail to rely on them to resolve questions squarely brought, even though those issues might easily fit into the framework of the respective constitution as described in preceding opinions.(22) The second method is qualitative. The author considers a series of cases and criticizes results which appear inconsistent or ambiguous in relation to precedent.(23) The third critical method is based on federalism theory. The author generally asserts that, no matter how state courts construe their constitutions, the results will be illegitimate due to aspects of federalism and current political realities beyond the control of state courts.(24)

    Because of the fatal results that might be wreaked upon state constitutionalism if this third critical view were to ever become authoritative,(25) proponents of the value of state constitutions, myself included, have spent much time and effort attempting to rebut the last type of argument.(26) This energy may, however, have been misplaced. James A. Gardner, a leading critical scholar who takes the third view, points to what I will call "shoddy workmanship" in state constitutional jurisprudence as symptomatic of a larger underlying problem.(27) Gardner lists among his symptoms:

    [C]ourts (1) turned only infrequently and grudgingly to their

    state constitutions, (2) failed to specify whether their decisions

    rested on state or federal constitutional grounds, (3)

    frequently followed in "lockstep" with federal rulings on

    similar issues, and (4) failed to identify or rely upon any

    state constitutional history that might help contextualize

    differences between the federal and state constitutions.(28)

    Might it be possible that such shoddy workmanship is itself the disease to be avoided? That is what I hope to show in Part II.


    "For know you well, my dear Crito, that to express oneself

    badly is not only faulty as far as the language goes, but does

    some harm to the soul."(29)

    More than two thousand years later, Plato's sentiments hold true in the realm of our state constitutional renaissance. The "soul" in this context may be the actual state constitutions upon which our current state constitutional renaissance must be founded if it is to survive; the "bad expression" could be the tendency of some judges to rely on incoherent or incompatible methods of analysis, or to base a reading of constitutional text on...

To continue reading