Path Dependence and the External Constraints on Independent State Constitutionalism
By Lawrence Friedman.
The promise of “the New Judicial Federalism”—of the independent interpretation by state courts of state constitutional corollaries to the federal Bill of Rights—has gone largely unfulfilled. In terms of doctrinal development, the project of independent state constitutionalism, launched in earnest decades ago with the publication of United States Supreme Court Justice William Brennan’s call to arms in the pages of the Harvard Law Review, is today more an aspiration than a practice. State courts often do not engage in the difficult task of trying to establish doctrinal tests that do not flow from federal precedent. Still, this does not mean that state courts cannot make valuable contributions to constitutional discourse—to the ongoing discussion among judges, advocates, commentators and citizens about constitutional meaning. Despite the constraints on the ability of these courts to innovate doctrinally, independent state constitutional interpretation in individual rights cases remains normatively desirable. That said, we must temper our expectations about what state courts actually may be able to accomplish.
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In the first part of this article, I outline Gardner’s and Long’s theories. I address why those theories do not fully explain the failure of state courts to engage in constitutional doctrinal development—or, perhaps more accurately, that they do not explain why state courts seem content to allow the U.S. Supreme Court to create the doctrine that governs shared textual commitments to individual rights and liberties, like the protections of free expression, privacy, due process of law and equal treatment before the law. I turn in Parts II and III to an explanation for inconsistent independent state constitutionalism that reflects the circumstances of state constitutional rights litigation. I suggest that the lack of independent constitutional analysis does not represent a failure of interest on the part of state courts, or a failure of methodology, character, or culture, but rather is simply the consequence of strong path dependence—that is, of a demonstrable and perhaps inevitable reliance upon federal constitutional doctrinal paths. My effort here is descriptive, to explain both how state constitutionalism is often path dependent, and why the conditions under which state courts operate promote path dependence. In Part IV, I argue that even a constrained independent state constitutionalism has enduring normative value in respect to constitutional discourse about individual rights and liberties, and therefore represents an effort worth the support of academics and lawyers alike.