Foreword: Reliance on State Constitutions-beyond the "new Federalism"
Publication year | 1984 |
Vern Countryman Washington (1970)(fn1)
The "new federalism" isn't new anymore.
It's been over a decade since the "new federalism"(fn2) appeared on the American constitutional scene. What New Jersey did in
During the 1970s, the focal point of the "new federalism" debate was the legitimacy of state court reliance on state law to secure rights not otherwise protected under federal law. The issue was batted around in the literature(fn9) and in the courts.(fn10) After all, "independent" decision-making in the individual rights area was virtually unthinkable to the generation of state judges living in the shadow of the Warren Court.(fn11) As interest in state charters burgeoned, the Burger Court responded by tightening the reins on the "adequate and independent state grounds" doctrine. In the span of time between Justice White's opinion in
The once "new federalism" found its chief judicial defenders in the persons of Justices Brennan,(fn15) Mosk,(fn16) and Charles Douglas.(fn17) The Reagan decade brought with it new champions of the now old and slightly modified federalism. The second generation of "new federalists" includes the likes of Justices Stevens,(fn18) Abrahamson,(fn19) Carson,(fn20) Hennessey,(fn21) Hill,(fn22) Pollock,(fn23) and Utter, among others.(fn24) And then there is Hans Linde, who today, as in 1970,(fn25) continues to address the "premises" that give rise to the notion that federalism can be understood as "a touchstone for theory."(fn26) Generally speaking, the debate between the judicial defenders and the judicial critics of the "new federalism" now has less to do with process than with prudence. That is, the question is no longer
The current trend among state judges is, by comparison, to take a more judicious look at state provisions. Considerations of history, text, structure, and analytical soundness are more regularly taken into account in judging whether in each case to embrace the federal view of the law.(fn29) Thus, for example, state jurists, mindful of the independent character of state law, may not elect to limit the focus of their inquiry in a double jeopardy case to what the Court said in
Another sign of how old the "new federalism" has become is the counter-response that it has received by way of constitutional amendments and judicial elections. Popular initiatives, like the ones that revived the death penalty in California,(fn33) Massachusetts,(fn34) and Oregon,(fn35) have added a new twist to the federalism and individual rights debate. The kind of constitutionally crude tampering we have witnessed in Florida with its amended state search and seizure guarantee(fn36) presents a special challenge to the advocates of the "new federalism." The constitutional tug of war has now shifted from courtrooms to voters' booths.(fn37) Where in the early 1970s the future of the "new federalism" turned largely on what lawyers wrote in legal briefs, in the 1980s its fate hinges as much on a ballot title(fn38) or voters' pamphlet and, of course, on political campaigning.(fn39) The "new federalism" has returned popular constitutionalism to the American stage. Thus, popular consensus directly rivals the institution of judicial review in the constitutional arena. The challenge is even more direct when one considers what the "new federalism" has meant for state judges facing re-election. One of the greatest achievements of the "new federalism" has been the public's expression of confidence in those state judges who have kept state bills and declarations alive in the face of ardent political attacks.(fn40) Whether state law and its interpreters can continue to survive the political pressures of majoritarian will depends on the extent to which enlightened constitutionalism can be fused with modern democracy. For the time being, the "new federalism" has, on the whole, shown that the two can coexist.
The other side of the "popular constitutionalism" has been the progress made, largely between 1970 and 1980, in enacting state constitutional provisions that buttress the individual rights edifice. For example, the era of the "new federalism" has been one during which gender equality became the constituted supreme law of many states,(fn41) despite the failure of the proposed twenty-seventh amendment to win voter approval. Similarly, legal progressivism is nowhere more evident in written charters of liberties than in the amended declarations of rights approved in the 1970s by the citizens of Montana(fn42) and Louisiana.(fn43) This public appreciation of state constitutionally secured rights continues in states like Georgia,(fn44) Utah,(fn45) and North Dakota.(fn46) So while the "new federalism" has drawn a counter-response by way of rights-reducing measures, it has also brought with it a social consciousness that recognizes the importance of measures that reinforce rights.
Finally, the "new federalism" has already greatly altered the way in which the bench and bar litigate individual rights cases. Back in the early days of
What then lies beyond the "new federalism"? First, and as outlined above, we are already beyond that point. Second, we can expect considerably more independent decision-making
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