Whose Constitution is it? Why federalism and constitutional positivism don't mix.

• Author: Gardner, James A.
• Position: Dual Enforcement of Constitutional Norms

INTRODUCTION

Ever since state constitutional law arrived as a field of study twenty years ago, its most pressing and contentious problem has concerned the question of how state constitutions ought to be interpreted, and in particular whether the appropriate methods for interpreting a state constitution differ from those commonly employed in analyzing the federal Constitution. (1) In the course of this ongoing debate, it has frequently been argued that state constitutions ought to be interpreted using a methodology of strict constitutional positivism. I shall define "constitutional positivism" more formally below. For now, it is sufficient to say that constitutional positivism is, broadly speaking, a familiar and commonplace theory of interpretational legitimacy that requires courts to approach a constitution as an authoritative expression of the will of the people who made it, and to interpret the constitution strictly in accordance with that popular will as it is expressed in the document. I shall argue, in this Article, that the interpretational methodology of constitutional positivism, which furnishes the dominant approach to the interpretation of the U.S. Constitution, cannot simply be lifted from federal constitutional law and applied willy-nilly to state constitutions. Although it is possible, and perhaps desirable, to adapt the methods of constitutional positivism to the interpretation of state constitutions, substantial modifications must be made before such methods can be used successfully in this very different setting.

In their strongest statements, advocates of a state constitutional jurisprudence of constitutional positivism sometimes argue that only the narrowest positivist approaches to constitutional interpretation, such as textualism (2) or originalism, (3) should be applied to state constitutions. But even in its most general and moderate formulations, advocates of strict positivist approaches are united by a methodological belief that the job of the interpreter is, essentially, to pay really close and exclusive attention to the state constitution and its unique and exclusive interpretational props--its text, the intentions of its framers, its relevant history, and so on. Certainly, an interpreter proceeding in the strict positivist mode would have no business relying on the text, framers' intentions, or founding history of any other constitution; the central tenet of constitutional positivism is that the only constitution that is relevant for purposes of interpretation is the one under consideration, along with its unique associated body of interpretational aids.

Sometimes a jurisprudence of state constitutional positivism is justified on the ground that, because state constitutions are so easily and frequently amended, it is often possible to discern "the framers' true intent" (4) in a way that is sometimes impossible to accomplish when interpreting the U.S. Constitution due to its age. Thus, the argument goes, whatever its potential flaws as a tool of federal constitutional interpretation, a jurisprudence of original intent can be effective when applied to state constitutions. Others have argued that the tendency of state constitutions to regulate a wide variety of governmental activities in great detail makes many provisions of state constitutions unsuitable for any kind of analysis other than a purely textual one. (5) More generally, though, constitutional positivism is typically defended on the ground that it is the only sound methodology for interpreting any constitution, whether state or national. This is the view taken by adherents of what has come to be known as the "primacy" approach to state constitutional interpretation, (6) and it is the view that I want primarily to dispute.

A frequently-expressed frustration in the field of state constitutional law is that state courts often fail to follow the prescribed methodology of constitutional positivism: they ignore subtle (and sometimes not-so-subtle) cues contained in the state constitutional text; they fail to inquire into the views of the state constitution's framers; and they undertake no meaningful investigation into the history of their state or the development of its constitution. (7) Instead, state courts frequently look to federal constitutional law for guidance: they examine the text of the U.S. Constitution, the writings of Madison, Hamilton, and other key Framers of the federal Constitution; and rely heavily on decisions of the U.S. Supreme Court. (8) Sometimes state courts seem to assume that the meaning of state constitutional provisions is given more by national sources of constitutional meaning than by any distinctive attributes of the state constitution itself, and they thus incorporate federal constitutional doctrine wholesale into state constitutional jurisprudence. (9) Although this practice has been the subject of frequent and intense criticism, (10) I shall argue that it is in fact often a logical response to the situation in which judicial interpreters of state constitutions find themselves, in large part because orthodox constitutional positivism simply is not a viable interpretational methodology for subnational constitutions in a federal system.

The application of constitutional positivism to state constitutions has been criticized before, most often by invoking interpretational models that challenge the conceptual foundations of constitutional positivism itself. Critiques by Professors Kahn and Friedman, for example, proceed from a dialogic model of constitutional meaning, (11) and Professor Robert Schapiro has offered a theory of state constitution making that abandons reliance on an intentional correspondence between a self-conscious polity and its governing constitutional document. (12) While these critiques are useful and potent, the one I offer here is different in that it preserves the basic assumptions and conceptual structure of constitutional positivism, which is after all a very good theory--in our time, the preeminent theory--on which to sustain and legitimize indirect, republican democracy. What I wish to show, however, is that the premises of constitutional positivism cannot, except with substantial modification, be coherently applied to the constitutions of the American states.

Part I of this Article sets out the political theory of constitutional positivism and its attendant ideology of interpretation. Part II turns to the federal structure of American government, and argues that the status of subnational units in a true federal system violates the conditions necessary to justify the interpretational methods of constitutional positivism. Part III draws out some of the implications of this disjunction for state constitutional interpretation, and Part IV concludes by examining some potential complications of my analysis.

1. CONSTITUTIONAL POSITIVISM

   The basic theory of constitutional positivism is Lockean, and it tells a familiar story about the significance of constitutions and the source of their legitimacy as fundamental law. According to this story, autonomous individuals, self-ruling in the state of nature as a matter of natural law, agree voluntarily for their own mutual security and advantage to band together into a civil society. (13) In so doing, each member of the society gives up his or her natural right of self-rule to the collective group. Having thus entered into a self-governing society, society's members--now known as "the people"--generally find it advantageous to create a government to handle the chores associated with collective self-rule. The government, on this view, is thus no more than a servant or agent of the people, and can exercise only the powers that have been delegated by the people, and then only in a way that the people have authorized. (14) A government that has been duly appointed by the people and acts within the bounds of its delegated powers is "legitimate"--it has the right, and not merely the power, to make laws binding on society. A constitution, on this view, is simply a positive statement of the instructions of the principal (the people) to its agents (the government), and that is why government officials must strictly obey and implement the will of the people as it is expressed in their constitution. (15) This is, of course, the familiar story of the American founding, one that is told and retold in the canonical texts of American law. (16) It provides, in Eugene Rostow's words, "the prevailing political theory of modern times and the only modern rival for the doctrine that power proceeds from the barrel of a gun," (17) and it furnishes the theoretical foundations of constitutionalism itself. To a very great extent, we are all constitutional positivists.

   The political theory of constitutional positivism also provides an accompanying theory of legitimate constitutional interpretation. Because the constitution contains the positive and binding instructions of the people, judges, who are themselves only specialized public servants, must construe the constitution consistent with the will of those who made it. Consequently, according to constitutional positivism, judicial review consists in the main of an attempt to discern and faithfully to enforce the will of those who made and adopted the constitution. (18)

   Nevertheless, just because constitutional positivism provides the central narrative account of the U.S. Constitution does not necessarily make it the best account of state constitutions. Constitutional positivism makes a number of critical assumptions about the nature of the polity and its relation to its constitution, three of which are relevant here. Under constitutional positivism, the polity that creates the constitution must have three characteristics: it must be (1) unique, (2) determinate, and (3) self-constructed.

   The uniqueness requirement assures a one-to-one correspondence between a polity and its constitution. Under the...