State Constitutionalism and the Problems of Fairness

Abstract

State constitutionalism has always seemed a poor step-sister to federal constitutionalism. When the federal courts were robust in their review of state law, no one thought too seriously about the problem of state constitutional review. To the degree that anyone worried about federalism, they worried about federal interference with the state legal processes. Not more judging, but less—from whatever source—was the concern of those who spoke in favor of federalism. A profound change in the character of federal constitutionalism has occurred in the last generation. Modem recourse to state constitutionalism is a complex reaction to this change.