Some Thoughts About State Constitutional Interpretation
By Jack L. Landau.
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.