Interpretation and Authority in State Constitutionalism

Abstract

In 1977, Justice Brennan delivered his now famous plea for a renaissance in state constitutionalism. As much as any judicial opinion he ever wrote, this plea has influenced the development of American constitutionalism. Since 1977, there has been an outpouring of scholarly work as well as a renewed interest by bench and bar in the possibilities of state constitutionalism. Conferences are held and papers written in order to encourage its development. This essay is in the same practical style, advocating a vigorous state constitutionalism. However, I abandon the central premise of most previous works, namely, that the interpretation of a state constitution must rely on unique state sources of law. Those sources include the text of the state constitution, the history of its adoption and application, and the unique, historically identifiable qualities of the state community. State constitutional law, it is assumed, can diverge from federal law only if the differences can be traced to one of these sources. This premise rests on an idea of state sovereignty that at best is a romantic longing for vibrant local communities and at worst misunderstands modern American constitutionalism. My aim is to show that state constitutionalism can survive the abandonment of this premise and that, in fact, the doctrine of unique state sources threatens to undermine the renewed interest in and growth of state constitutional law