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The Failed Discourse of State Constitutionalism

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The Failed Discourse of State Constitutionalism Michigan Law Review Volume 90 Issue 4 1992 The Failed Discourse of State Constitutionalism James A. Gardner Western New England College School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761 (1992). Available at: https://repository.law.umich.edu/mlr/vol90/iss4/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE FAILED DISCOURSE OF STATE CONSTITUTIONALISM James A. Gardner* TABLE OF CONTENTS INTRODUCTION • • • • . • • • • . • • . • • • • • . • • • . • • • • . • . • • • • • • . • • 762 I. CONSTITUTIONAL DISCOURSE • • • . • • • • • • . • • • • • . • • • • • . 767 A. Definition . 7 67 B. The Significance of Constitutional Discourse......... 768 C. Federal Constitutional Discourse as a Model . 770 II. NEW FEDERALISM • • • • • . • • • . • . • • • . • . • • • • • • . • • • . • 771 III. THE POVERTY OF STATE CONSTITUTIONAL DISCOURSE • • • • • • • • • • • . • • • • • . • . • • • • . • • • • . • • • • • • • • • • 778 A. General Trends. 780 1. The Infrequency of State Constitutional Decisions . 780 2. Grudging Resort to the State Constitution . 781 3. Obscurity Concerning the Basis of Rulings . 785 4. Lockstep Analysis . 788 5. Silence on State Constitutional History . 793 B. Exceptions. 794 1. Divergences from Federal Law . 795 2. Independent Analysis. 799 3. The California Caseload. 800 4. New Hampshire................................ 801 C. Conclusions . 804 IV. THE STANDARD EXPLANATIONS • . •••••• •••••... ••• . 805 A. The Fourteenth Amendment . 805 B. Lawyers and Law Schools . 810 C. Lack of Historical Data . 811 V. THE FAILURE OF STATE CONSTITUTIONALISM... ••••..• 812 A. State Constitutionalism . 812 1. Federalism..................................... 812 © Copyright 1991 by James A. Gardner. • Associate Professor of Law, Western New England College School of Law. B.A. 1980, Yale University; J.D. 1984, University of Chicago. -Ed. I wish to thank Lise Gelernter, Leora Harpaz, Don Korobkin, Jay Mootz, and James Boyd White for commenting on previous drafts. Thanks are also due to Western New England College School of Law and Dean Howard Kalod­ ner for providing financial support and to Stephanie Lebowitz for providing research assistance. 761 762 Michigan Law Review [Vol. 90:761 2. Constitutionalism . 814 3. Constitutionalism and Constitutional Discourse . 815 4. Local Variations in Character . 816 B. Conundrums of Character. 818 C. The Incompatibility of State and Federal Constitutionalism . 823 1. The Framework of Nationhood . 823 2. The Dangers of a Robust State Constitutionalism . 826 3. The National Focus on Fundamental Values . 827 D. The Nature of State Constitutional Differences . 830 VI. SOME POSSIBLE REsOLUTIONS • . • • • . • . • • • • . • • • • • . • • 832 CONCLUSION • • • • . • . • • • . • • • • . • • • • . • . • . • • • • • . • . • • • . • • • 836 INTRODUCTION Fifteen years ago, Justice William Brennan wrote an article in which he called upon state courts to "step into the breach" left by what Brennan perceived to be the U.S. Supreme Court's retreat from its commitment to the protection of individual rights.1 Brennan urged state supreme courts to seize control of the protection of constitutional rights by looking to state constitutions as potentially more generous guarantors of individual rights than the U.S. Constitution as construed by the Burger Court. Brennan's article, which has been called the "Magna Carta" of state constitutionalism,2 earned him the sobriquet of "patron saint" of sta~e constitutional law3 and gave birth to a move­ ment advocating state independence in constitutional decisionmaking. Adherents of this "New Federalism" movement,4 who include among their number several distinguished state jurists5 and some prolific aca- I. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REv. 489, 503 (1977) [hereinafter Brennan, State Constitutions]; see also William J, Brennan, Jr., The Bill ofRights and the States: The Revival ofState Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535 (1986) [hereinafter Brennan, Bill of Rights]. 2. Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 RUTGERS L. REV. 707, 716 (1983). 3. Earl M. Maltz, False Prophet - Justice Brennan and the Theory of State Constitutional Law, 15 HASTINGS CoNsr. L.Q. 429, 429 (1988). 4. The movement has also been called the "New Judicial Federalism" to distinguish it from a legislative program pushed during the Reagan Administration that was also called "New Feder­ alism." The Reagan Administration program involved making changes in federal law designed to reallocate governmental responsibilities from the federal to state governments. The New Fed­ eralism under discussion here is a state-initiated movement to achieve judicial rather than legisla­ tive independence from the federal government, and on a constitutional rather than programmatic level. S. Former Oregon Supreme Court Justice Hans Linde, Wisconsin Supreme Court Justice Shirley Abrahamson, New Jersey Supreme Court Justice Stewart Pollock, New York Court of Appeals Judge Judith Kaye, and Washington Supreme Court Justice Robert Utter have been February 1992] State Constitutionalism 763 demics, 6 have produced a voluminous body of commentary studying the decisions of state supreme courts, and exhorting them to greater decisional independence.7 Judging from this literature, the advocates of New Federalism are extraordinarily optimistic about the prospects for state constitutional law achieving the independence and promi­ nence necessary not only to meet Justice Brennan's challenge, but to fulfi11 what they regard as the promise of a genuinely federal system of government. 8 The recent retirement of Justices Brennan and Thurgood Marshall, the last two liberals on the U.S. Supreme Court,9 and the correspond­ ing solidification during the 1990-1991 Term of the Court's conserva­ tive majority, make this an appropriate time to reconsider the potential role of state constitutional law in American society. Are state courts, as proponents of New Federalism contend, developing an independent body of constitutional jurisprudence? If so, will state courts assume the dominant role traditionally occupied by the Supreme Court in articulating and protecting individual rights? If not, can they assume such a role, and should they? In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state consti­ tutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamen­ tal defect responsible for this state of affairs is the failure of state among the most active contributors to the New Federalism literature. See, e.g., Shirley S. Abra­ hamson, Criminal Law and State Constitutions: The Emergence ofState Constitutional Law, 63 TEXAS L. REV. 1141 (1985); Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 ST. JOHN'S L. REv. 399 (1987); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 GA. L. R.Ev. 165 (1984); Pollock, supra note 2; Robert F. Utter, State Constitutional Law, the United States Supreme Court, and Democratic Accountability: Is There a Crocodile in the Bathtub?, 64 WASH. L. R.Ev. 19 (1989). 6. Ronald K.L. Collins, Robert F. Williams, and Donald E. Wilkes, Jr. have been among the more active expounders of New Federalism. Representative examples of their work include Ron­ ald K.L. Collins, Reliance on State Constitutions - The Montana Disaster, 63 TEXAS L. R.Ev. 1095 (1985); Donald E. Wilkes, Jr., First Things Last: Amendomania and State Bills of Rights, 54 MISS. L.J. 223 (1984); Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. R.Ev. 353 (1984). 7. For comprehensive bibliographies of the literature, both old and new, dealing with state constitutional law, see DEVELOPMENTS IN STATE CONSTITUTIONAL LAW 317-35 (Bradley D. McGraw ed., 1985); TIM J. WATTS, STATE CONSfITUTIONAL LAW DEVELOPMENT: A BIBLI­ OGRAPHY (1991); Earl M. Maltz et al., Selected Bibliography on State Constitutional Law, 20 RUTGERS L.J. 1093 (1989). 8. See infra notes 37-38 and accompanying text. 9. Justice Blackmun is today often considered a liberal. This shows how times have changed. During his early years on the Court he was considered a centrist, if not a conservative. See Philip B. Kurland, 1970 Term: Notes on the Emergence of the Burger Court, 1971 SUP. CT. R.Ev. 265, 268. 764 Michigan Law Review [Vol. 90:761 courts to develop a coherent discourse of state constitutional law - that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state constitutions. Second, I analyze the reasons for the failure of state courts to de­ velop such a discourse. After rejecting several
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