State courts as agents of federalism: power and interpretation in state constitutional law.

• Jurisdiction: United States
• Author: Gardner, James A.
• Date: 01 March 2003

ABSTRACT

In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the United States Constitution. This reconciliation, however, is unavailable for state courts, which, by operation of the Supremacy Clause, cannot employ national law as a force for resisting national power while simultaneously appealing to it as a legitimating source of impartial restrictions on that power.

This Article argues that the tension between these understandings need not be resolved at all for state courts simply because there is nothing wrong with state courts using what powers they have to protect popular liberty by resisting, or by helping other state officials to resist, abuses of national authority. Through their control over state constitutions, state courts are capable of influencing the manner and the forcefulness with which state governments may wage the kinds of struggles against national authority contemplated by federalism. State courts may do so by folding into their interpretation of state constitutional provisions consideration of the "federalism effects" of their rulings--that is, the impact of their constructions on the ability of the state effectively to resist abuses of national power. In so doing, state courts become "agents of federalism."

The Article then considers and rejects a variety of strict constructionist objections to this approach to constitutional interpretation, discusses the conditions in which state courts might receive popular authorization to act as agents of federalism, and explores some of the ramifications for state constitutional interpretation of popular decisions concerning the authority of state courts.

TABLE OF CONTENTS INTRODUCTION I. FEDERALISM AND STATE COURTS II. STATE COURTS AS AGENTS OF STATE POWER A. The Affirmative Use of Granted Powers to Advance the Public Good B. Judicial Restraint of State Tyranny III. STATE COURTS AS AGENTS OF FEDERALISM A. Judicial Tools of Federalism Agency 1. National Tools of Judicial Federalism Agency 2. State Tools of Judicial Federalism Agency B. Federalism Effects as a Factor in State Constitutional Analysis IV. STRICT CONSTRUCTIONIST OBJECTIONS A. The Objection from Incoherence B. The Objection from Danger V. TRUST AND DISTRUST OF STATE COURTS A. Institutional Considerations B. The Record of State Courts as Guardians of Liberty VI. INTERPRETATION AND THE CONSEQUENCES OF FEDERALISM AGENCY A. A Brief Introduction to State Constitutional Interpretation B. State Constitutional Interpretation and Federalism Agency INTRODUCTION

In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a permanent struggle between state and national power. The ultimate beneficiaries of this power struggle are the American people, whose liberty is thus protected by a "double security." (1) The same American constitutional tradition also holds that courts are basically passive institutions whose mission is merely to apply the law impartially, while avoiding inherently political power struggles. (2) These two commonplace understandings conflict on their face. Courts are institutions of governance; the judiciary is, after all, one of the three coordinate branches of government created by the United States Constitution and by every state constitution. Yet if courts are institutions of governance, then the values underpinning federalism appear to compel them to stand with their own coordinate executive and legislative branches against the interests of other levels of government when push comes to shove in any intergovernmental power struggle. If, as Madison claimed, liberty is most threatened when the various organs of government cooperate, and it is best protected when the interests and motives of governmental actors conflict, (3) then courts, like legislatures and executives, ought to choose up sides at least some of the time. That is to say, they ought to assert the interests of their own level of government against the other--a conception of judicial power that conflicts directly with the ideal of judicial impartiality before the law.

One way to dissolve this tension is to conceive of courts as somehow standing outside of, and thus institutionally unconcerned with, the kinds of power struggles between state and national government that federalism contemplates. (4) A moment's reflection, however, shows that this is certainly far from the case where federal courts are concerned. In fact, federal courts have long played a highly significant role in actively resisting what they take to be improper uses of state power, most notably by invalidating state laws that violate the U.S. Constitution. Indeed, Justice Holmes once remarked that he thought the power of federal courts to invalidate unconstitutional state laws so important that its loss would threaten the very survival of the Union. (5)

This kind of national activity, however, need not impugn the idea of courts as standing outside of intergovernmental power struggles. This is because the invalidation of a state law by a federal court can be understood as the impartial consequence of limitations on state power imposed by the U.S. Constitution--limitations imposed, that is to say, by law rather than upon the say-so of federal courts engaged in an intergovernmental power struggle against state authority. The idea of judicial neutrality can thus be preserved even within the federal structure: when federal courts resist state power they may be understood as merely undertaking a very traditional kind of impartial adjudication, thereby dissolving the tension between conventional understandings of federalism and judicial apoliticism. (6)

This method of reconciling the two understandings is unavailable, however, when we turn to state courts because there is no superseding body of law to which state courts might resort that would enable them to control with finality the actions of national officials. Because the Supremacy Clause makes national law supreme, (7) and national law is controlled ultimately by federal courts, state courts cannot employ national law as a force for resisting national power while simultaneously appealing to it as a legitimating source of impartial restrictions on that power. Federal courts, not state courts, ultimately decide what powers the state and national governments legitimately possess under the U.S. Constitution.

This asymmetry between state and national judicial power suggests a different way of reconciling federalism's imperative of governmental self-partiality with notions of judicial apoliticism: it may be that this tension simply does not exist for state courts because they lack the tools to join effectively in any struggle against national power that other organs of state government might choose to wage. As Stalin once said of the Pope: "How many divisions has he got?" (8) What weapons do state courts possess that they could deploy against national power should some tyrannical action of the federal government justifiably prompt resistance from state governments? About the only thing state courts definitively control is the content of state law, yet state law generally cannot restrict officials in any branch of national government, and can often be displaced by Congress, through preemption, and by federal courts, through invalidation under the U.S. Constitution. Does this mean, then, that state courts have no role to play in maintaining the balance of state and national power contemplated by federalism? Are they mere bystanders to a permanent struggle against national power waged by the state legislative and executive branches?

I think not. State law is capable of controlling something potentially significant to any struggle by states to resist national power: other state officials. Through their control over state law, and in particular through their control over the state constitution, state courts are capable of exercising some influence over the manner and forcefulness with which state governments may wage the kinds of struggles against national authority contemplated by federalism. By construing the provisions of the state constitutions that both empower and restrict the state legislative and executive branches, state courts can influence the facility with which state government responds to threats originating at the national level; the tools that state actors have at their disposal to resist encroachments by national power; and the ways in which state officials may deploy those tools in intergovernmental power struggles.

If state courts are thus understood as potentially significant actors in the process by which states resist national power, then the tension between the imperatives of federalism and the imperatives of judicial neutrality cannot be dissolved on the ground that state courts are too weak to participate in federalism's mechanism of mutual intergovernmental checking. How then can the tension be resolved? In this Article, I argue that the tension need not be resolved at all for the simple reason that there is nothing wrong with state courts using what powers they have to protect popular liberty by resisting, or helping other state officials to resist, abuses of national authority. Indeed, there is much to recommend such an understanding of state judicial power.

Part I of this Article provides a brief overview of the mechanics of federalism and explores the...