Volume 115, Issue 4, Spring 2011
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Articles
Introduction: State Constitutionalism in the 21st Century
By Gary S. Gildin and Jamison E. Colburn. 115 Penn St. L. Rev. 779.
State constitutional law is a vibrant, albeit still underappreciated, area of legal study. With this Symposium, we hope that the contours of this field have been expanded, the debate over its use, application, and future grows, and that state constitutional law continues to take its rightful place alongside the federal charter in the continued debate over constitutional jurisprudence in the United States.
Path Dependence and the External Constraints on Independent State Constitutionalism
By Lawrence Friedman. 115 Penn St. L. Rev. 783
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.
Some Thoughts About State Constitutional Interpretation
By Jack L. Landau. 115 Penn St. L. Rev. 837.
I have been asked to offer my thoughts about state constitutional interpretation. That is a generous invitation; “state constitutional interpretation” covers a lot of ground. To avoid my response from becoming unmanageably long, I have decided to focus on what I see as some core issues pertaining to the interpretation of state constitutions, which I have organized in terms of three questions: “whether,” “when,” and “how.”
By “whether,” I refer to the question of whether state constitutions should be given independent legal significance at all. The issue arises when a state constitutional provision concerning individual rights finds a parallel in the federal constitution. Some contend that recognizing the independent significance of state constitutions is not worth the trouble and that, in fact, state constitutions are not even “constitutional.” I think those who take such positions offer some interesting and provocative perspectives. But I suggest that, in the real world, they do not undermine the essential legitimacy of state constitutionalism.
By “when,” I refer to the timing of state constitutional interpretation in relation to the interpretation of parallel provisions of the federal Constitution. There are several different approaches. Some take the position—known as the “primacy” position—that courts always should begin constitutional analysis with state constitutions and proceed to federal constitutional analysis only if a state constitution does not provide an answer to the issue at hand. Others take the opposite view—known as the “interstitial” view—that courts should begin with the federal Constitution and reach state constitutional provisions only if the federal Constitution fails to afford complete relief. Still others take a sort of middle position, arguing that engaging in state constitutional analysis depends on a weighing of a variety of factors. I am, for reasons that I will explain, firmly of the primacy perspective.
By “how,” I refer to questions of interpretive method or theory. This, of course, is a subject that has received an astonishing amount of attention from legal scholars over the past 50 years, at least with respect to the federal Constitution. It is difficult to find a general law review that does not sport at least one article that struggles with “the counter-majoritarian difficulty” and the legitimacy of federal judicial review. Little attention has been paid to state constitutional interpretive method or theory, however. That is unfortunate. The legitimacy concerns that have prompted the outpouring of scholarship about federal judicial review over the last half-century are, although somewhat different in nature, no less important in the case of state judicial review. Judges, lawyers, and scholars should pay more attention to state constitutional method or theory.
As for the specifics of how I think state constitutional method should work, I offer no grand unified theory. Principally, that is because, in my view, no grand unified theory exists that is completely satisfactory. None eliminates judgment from the interpretive process. That does not mean that interpretation is a free-for-all. Some principles of state constitutional interpretation can serve to address legitimacy concerns and will be useful in the vast majority of cases.
In brief, I suggest that the proper method of interpretation of state constitutions depends on the nature of the provision involved. Interpretation of more recently adopted and specific provisions—which are often accompanied by a well-developed historical record—should closely hew to the wording as understood by those who adopted them. Older, more open-ended provisions, in contrast—those often unaccompanied by a well-developed historical record (if any record at all)—require a more dynamic approach to interpretation, one that searches for a more general principle that may be applied to modern circumstances.
Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court’s Constitutional Remedies Jurisprudence
By Gary S. Gildin. 115 Penn St. L. Rev. 877
The legal system’s willingness to award a viable remedy to persons harmed by the government’s invasion of individual liberty is a vital component of any regime of constitutional protection. English common law, international human rights instruments, and the seminal decision of the United States Supreme Court establishing the power of judicial review concur that victims of official misconduct must have recourse to effective relief if limits on governmental power are to be meaningful. It is essential that money damages to compensate the citizen for injuries suffered as a result of a constitutional violation be available. For a person harmed by unconstitutional action that is not likely to recur to that individual—such as police misconduct—injunctive relief may be meaningless, if even procurable. Particularly if the successful plaintiff may not recover attorney’s fees, absent a damage remedy, victims of governmental wrongdoing will have neither the incentive nor the means to file a civil action to redress the deprivation of their constitutional rights. As a consequence, government officials may freely ignore constitutional constraints without formal legal consequence.
Despite the critical importance of remedies to the litigant and to the overall efficacy of a constitution in restraining the misuse of governmental authority, judicial prescription of when and from whom damages are recoverable historically emerges as a second-generation development. In the initial era of constitutionalism, courts are fully occupied by the process of defining the substantive scope of constitutional rights. Only after marshalling a sufficient jurisprudence of rights do courts tackle the appropriate remedy for losses caused by violation of those rights.
State Courts and Constitutional Socio-Economic Rights: Exploring the Underutilization Thesis
By Helen Hershkoff and Stephen Loffredo. 115 Penn St. L. Rev. 923
Comparative constitutional scholars are beginning to recognize the importance of subnational constitutions for law-making and governance. In particular, commentators emphasize that a polity’s decision to assign some aspects of constitutional practice to the subnational level significantly affects the political choices available to constitutive units within a larger system and to the system overall. So far, the emerging literature largely has focused on the structural aspects of constitutional design, including such features as whether to have a Parliament or a legislature, whether to have a bicameral or a unicameral legislature, and so forth. Although the political space reserved for subnational constitutions also extends to substantive issues, the nascent comparative literature on this subject suggests that constitutive units do not always develop the substantive authority that their constitutions afford them. Rather, commentators observe that “subnational units in federal systems more often underutilize their constitution-making competency than they overutilize it.” Some commentators further argue that because of agency costs, subnational constitutional rights may tend to be judicially under-protected or only weakly entrenched in the sense of being subject to easy amendment, reversal by popular referendum, or dilution through legislative backlash.
The United States federal system well illustrates the potential of subnational constitutions—the constitutions of the fifty states—to encourage a poly-vocal approach to substantive issues involving rights and obligations. To take an important example, the federal Constitution is silent on many questions of socio-economic concern. However, almost every state constitution in the United States explicitly addresses important public goods such as education, income assistance, and housing support, and some state courts have tried to enforce these provisions in the face of legislative indifference or recalcitrance. Other state courts, however, treat socio-economic constitutional provisions as nonjusticiable and so underutilize the authority that the state constitution sets out. Inherent in U.S.-style federalism and a vision of states as “laboratories of experimentation” is an understanding that state constitutions will differ both from the national Constitution and from each other, and also that state courts will take different approaches in interpreting state documents. However, a serious question is presented if state courts decline to enforce the rights that their subnational constitutions include. This Article explores the subnational constitutional underutilization phenomenon in the context of U.S. judicial enforcement of state constitutional socio-economic rights.
Judicial Federalism and the Challenges of State Constitutional Contestation
By Robert A. Schapiro. 115 Penn St. L. Rev. 983
Scholars of federalism emphasize the importance of states and state constitutions as alternative sources of power in the United States. Authority does not simply flow from Washington, D.C. Rather, power is spread throughout multiple layers of governance. This proliferation of nodes of authority offers a variety of benefits. For example, if the national government does not adequately address a problem, the states can provide the necessary protection for their citizens. Thus, if federal law does not safeguard personal sexual liberty, grant equality rights to same-sex couples, or guarantee medical care, the states can step in and fill these gaps. These state endeavors may encourage the federal government to act, either by offering best practices or by highlighting the shortcomings of federal efforts. States can lead by example.
In addition, states can directly contest federal practices. Rather than supplementing federal efforts or substituting for federal inaction, states may actively oppose national policy. The means of opposition may be political, as states serve as rallying points for resistance to national programs. On at least one notable occasion, the Civil War, the opposition has taken military form. Recently, however, states have designated the federal courts as the forums of choice. States have brought suit against the national government, claiming that it has violated federal law.
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This paper considers the role of states in bringing their disputes with the federal government into court. I wish to examine when it is appropriate for states to subject the national government to judicial supervision. In particular, I will focus on those instances where it appears that the state’s participation is necessary to make a dispute justiciable. States may become involved in litigation with the federal government for a variety of reasons, such as offering litigation support or bringing public attention to the matter. Here, though, I am interested in those situations where the state’s participation is essential to opening the courthouse doors, taking a dispute that otherwise would remain—at least for the moment—outside of judicial cognizance and endowing it with a magic key to the courtroom.
State Constitutional Amendment Processes and the Safeguards of American Federalism
By John Dinan. 115 Penn St. L. Rev. 1007
Federalism scholars have studied the range of ways that state interests are advanced in the American federalism system, including through intergovernmental lobbying, federal lawsuits, state statutes, and state non-participation in federal programs. State constitutional law scholars, meanwhile, have noted the ways that state court rulings can provide greater protection for rights than at the federal level. I call attention to another way that state interests are advanced in the federal system and with increasing frequency: through state constitutional amendment processes. I also analyze the conditions under which processes can be effective in comparison with traditional mechanisms of state influence. In a number of cases, constitutional amendment processes are serving a role that can be played just as effectively by traditional mechanisms of state influence, and there is no reason why amendment processes are any more effective than these mechanisms. But in other instances, state constitutional amendment processes are more effective than alternative mechanisms or are effectively supplementing these other mechanisms.
What State Constitutional Law Can Tell Us About the Federal Constitution
By Joseph Blocher. 115 Penn St. L. Rev. 1035
Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to the federal and state systems.
This short Article attempts to turn the focus around, by asking what state constitutional law can tell us about the federal constitution. The thesis explored here is that federal constitutional doctrine can and sometimes should do more to draw on state constitutional law, particularly when that law addresses—as it often does—analogous language or problems with which the federal courts have little experience. The Article calls this idea “reverse incorporation” for lack of a better phrase, but “federal constitutional borrowing of state constitutional law” would probably be more accurate, if a bit clunkier. In any event, the phrase is not meant to invoke the “reverse” incorporation associated with Bolling v. Sharpe, but to denote a wide range of “uses”: from looking to state doctrine as persuasive authority in federal cases to using it to define federal law.
Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism After Medellin
By Johanna Kalb. 115 Penn St. L. Rev. 1051.
Subnational implementation of human rights law has been the subject of increasing interest among scholars and litigators in recent years, building on the call for independent state constitutionalism and the rise of New Federalism. For state constitutionalists, international human rights law provides a legitimating source for articulating state constitutional principles not captured in federal constitutional law. For human rights advocates, state courts provide an alternative and possibly friendlier forum for some of these kinds of claims. With the prominent success of some of these international and comparative arguments, state court decisions applying international human rights law have become the subject of systematic study and coordinated advocacy efforts.
The space for independent state action to implement international human rights law may have been limited somewhat by the Supreme Court’s 2008 decision in Medellín v. Texas. That opinion contains language suggesting that non-self-executing treaties, including ratified human rights treaties, do not even have the status of domestic law absent implementing legislation. Under this view of the non-self-execution doctrine, states are under no obligation to respect or enforce even ratified treaty law until it is implemented through federal legislation. Despite the outpouring of scholarship suggesting that the Court’s language should not be interpreted this broadly, this view of the non-self-execution doctrine is becoming the law on the ground, at least in state courts.
My purpose here is to determine what effect this reading of Medellín would have on the future of international state constitutionalism. To do so, I study the conditions under which state jurists have engaged with the international human rights treaties the United States has signed or ratified, in order to consider whether and how these interactions will be affected by this new understanding of the status of treaty law. I begin in Part II by briefly reviewing the different paths through which human rights treaty law could be raised in state court cases. I then turn in Part III to surveying the activity on the ground. I examine the state cases that cite these treaties in order to identify when and how state courts engage substantively with these instruments. This in turn provides insight into possible advocacy strategies for increasing state court consideration of treaty norms. Finally, in Part IV, I consider these findings to assess how the Medellín decision will impact the international prospects of state constitutionalism. I conclude that because state courts have been more receptive to arguments based on treaty instruments as non-binding, persuasive authority, even the broadest reading of Medellín will not end this type of human rights advocacy.
Change that Matters: An Essay on State Constitutional Development
By Daniel B. Rodriguez. 115 Penn St. L. Rev. 1073
A sharp focus on state constitutional change brings into relief many related matters of state constitutionalism—how should we think about state constitutional development in a world in which state constitutions are frequently amended or revised? What political struggles take place on a battleground in which formal change may be the ultimate prize? How effectively do courts enforce procedural rules which purport to regulate processes of change? What light do positive theories of state politics, judicial behavior, and constitutional design shed on our normative perspectives on state constitutionalism in either a first or a second-best world? These are, of course, interrelated issues. And the emerging (and converging) fields of state constitutional law and American constitutional development promise to help us better negotiate these issues.
What we learn from modern scholarly perspectives on American constitutional development is essentially this: the relationship between law and politics is unavoidable and essential to understanding the dynamics of constitutionalism and constitutional change. Therefore, whatever focal point we have in mind in our consideration of state constitutional matters, we must attend to the ubiquitous considerations of both law and politics. In this symposium essay, I consider how this advised focus on law and politics—or what I call constitutional law/politics in high fidelity—illuminates the complex matter of state constitutional change.
While the relevance of this inquiry is not unique to state constitutions and constitutionalism, some special characteristics of state law and politics in the American constitutional system make this a topic of compelling importance. First, state constitutions are famously more malleable than is the U.S. Constitution; hence the circumstances in which change takes place—through formal means, to say nothing about informal means—are much more common in the state constitutional context. Second, and relatedly, the dynamics of social movements and direct political action are magnified given the real possibilities of implementing constitutional change. Third, elected state judges ignore powerful political pressures at their peril. They need to be—and likely are in reality—more closely attuned to the connection between legal judgments and political ramifications. Fourth, the availability of direct constitutional change through the initiative system in many states obviously amplifies the persistent political considerations in the law. Fifth, and finally, politics at the sub-national level implicate more conspicuously democratic values and circumstances.
Framed around the argument that state constitutional change is simultaneously about both law and politics, my essay has two distinct objectives. The first, and more ambitious of the two objectives, is to explain how and why theories of state constitutional development flounder unless they are conspicuously attentive to considerations of politics and political strategy and the positive political theory of legal decision-making. My second objective is to reinforce this abstract argument with a specific doctrinal example, the distinction in state constitutional law between revisions and amendments. While this distinction implicates key constitutional values, judicial interpretations have been incoherent and vexing. That courts have lurched toward and away from particular lodestars in implementing this distinction suggests the difficulties of undertaking state constitutional interpretation without due account of the peculiar dynamics of state constitutional politics.
Constitutional Revision: Are Seriatim Amendments or Constitutional Conventions the Better Way to Amend a State Constitution?
By Ann M. Lousin. 115 Penn St. L. Rev. 1099.
The fifty American states may amend their constitutions in two ways. First, the states can submit individual amendments to the voters. Usually, the legislature drafts each amendment, adopts it, and submits it to the voters for their approval. In those states that allow the initiative process, a group of voters sign a petition containing the proposed constitutional language and, if they obtain enough signatures, the state government submits the amendment to all of the voters for their approval. Second, the states can hold a constitutional convention to consider revisions of the constitution on either a limited or plenary basis.
Which method is better? In my forty years of researching Illinois constitutional issues and observing other states, I have learned that there are advantages and disadvantages to each method. Sometimes I recommend the first choice, serial amendments, and sometimes I recommend the second choice, a convention.
Teaching and Researching Comparative Subnational Constitutional Law
By Robert F. Williams. 115 Penn St. L. Rev. 1109
I had the opportunity to teach “Comparative Subnational Constitutional Law” as a five-week seminar in Graz, Austria in May-June of 2009. I admit that I have not yet sought to develop, or even apply, any of the theories being debated in comparative constitutional law circles. Professor Vicki Jackson has suggested four goals of comparative constitutional study: 1) developing a better intellectual understanding of other systems; 2) enhancing the capacity for self-reflection on one’s own system; 3) developing a normative understanding of best practices; and 4) responding to domestic questions that are comparative in nature. All of these seem to apply equally to comparative subnational constitutional law. Believing that there were enough materials now in English (my only language) to put together a set of readings for such a seminar, I gathered up a number of the publications that I have listed in the bibliography at the end of this article. I made these materials available to the students who had registered to take this course in English and found that most of the Austrian law students, like most American law students in the prior generation, were basically unaware of the, albeit relatively limited, legal importance and potential of the subnational constitutions in their country.
In fact, in Austria the constitutions of the Länder have not been considered very important, nor is the subnational constitutional space allotted by the Austrian Constitution particularly substantial. In other words, the Austrian Constitution is more “complete” than many other federal constitutions, in that it specifies a number of the structural elements of the component unit governments within the national constitution itself. Consequently, the subnational constitutional space is not very extensive. Still, however, the Länder constitutions in Austria have important (potential or possible) legal and political roles, and I thought it would be important to begin with an introduction to those matters. Rather than comparisons with the state constitutions in the United States, I concluded that a comparative class might be more meaningful if we started with the subnational constitutions of the host country. Discussing the potential of subnational constitutions can be very interesting, as I have discovered in Austria, South Africa, Brazil, Mexico and Argentina. Analyzing at least some of the preliminary questions quoted below in the context of the subnational constitutions of the host country can lay an effective groundwork or baseline for a selective consideration on some or all of these questions vis-à-vis the subnational constitutions in other countries.
Explaining Sub-national Constitutional Space
By G. Alan Tarr. 115 Penn St. L. Rev. 1133
Every federal system is structured by a federal constitution that divides power, establishes central institutions, prescribes the rules for resolving disputes, safeguards rights, and provides a procedure for its own alteration. In some federal systems, the federal constitution prescribes the political institutions and processes for the country’s constituent units as well, thus furnishing the constitutional architecture for the entire federal system. This is the case in Belgium and Canada, for example. But in most federal systems, the federal constitution is an “incomplete” framework document in that it does not prescribe all constitutional processes and arrangements. Rather, it leaves “space” in the federal system’s constitutional architecture to be filled by the constitutions of its sub-national units, even while it sets parameters within which those units are permitted to act. However, those federal systems that recognize a place for sub-national constitutions differ markedly in the extent to which the federal constitution is incomplete, that is, in the amount of space that they allocate to constituent units to define their own goals and establish their own governmental institutions and processes. In previous research, I have focused on the range of discretion (“constitutional space”) available to constituent units in designing their constitutional arrangements and on how the boundaries of that space are policed. In this article, I extend the inquiry into sub-national constitutional space to consider what factors influence the scope of sub-national constitutional space in various federal systems, why sub-national units have occupied or failed to occupy the constitutional space available to them, and what consequences sub-national constitutionalism has had on horizontal and vertical relations within federal systems.
Models of Subnational Constitutionalism
By Jonathan L. Marshfield. 115 Penn St. L. Rev. 1151
In 1977, a group of Nigerian constitution makers asked an astute question. Following a gruesome civil war, Nigeria began the task of crafting a federal constitutional democracy. Although the constitutional delegates agreed on a decentralization of political power, they nevertheless asked a separate question: should the Nigeria states be permitted to adopt their own constitutions? The proceedings from the 1977 Constituent Assembly show that the delegates gave careful consideration to that question as a distinct institutional choice. They decided that although Nigeria was committed to a federal arrangement, the states should not be permitted to adopt their own constitutions. State constitutionalism, they concluded, had proven too “divisive” during Nigeria’s prior constitutional regime, and it “was inimical to the unity of the country.”
The Nigerian experience begs a deeper question that theorists have largely neglected. Although scholars and constitution-makers have developed various theories regarding the utilities of federalism, they have not separately considered how subnational constitutions can uniquely serve (or undermine) those same purposes. Nor have they searched for any independent purposes that subnational constitutionalism may serve. In short, theorists have largely failed to consider the independent normative justifications for introducing subnational constitutionalism into federal systems. As the Nigerian experience illustrates, that theoretical question is not without serious practical consequences.
This Article takes up that important but neglected question. The goal is to move towards a systematization and critical analysis of possible justifications for introducing subnational constitutionalism into federal systems. The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.