Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix

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INTRODUCTION

Ever since state constitutional law arrived as a field of study twenty years ago, its most pressing and contentious problem has concerned the question of how state constitutions ought to be interpreted, and in particular whether the appropriate methods for interpreting a state constitution differ from those commonly employed in analyzing the federal Constitution. (1) In the course of this ongoing debate, it has frequently been argued that state constitutions ought to be interpreted using a methodology of strict constitutional positivism. I shall define "constitutional positivism" more formally below. For now, it is sufficient to say that constitutional positivism is, broadly speaking, a familiar and commonplace theory of interpretational legitimacy that requires courts to approach a constitution as an authoritative expression of the will of the people who made it, and to interpret the constitution strictly in accordance with that popular will as it is expressed in the document. I shall argue, in this Article, that the interpretational methodology of constitutional positivism, which furnishes the dominant approach to the interpretation of the U.S. Constitution, cannot simply be lifted from federal constitutional law and applied willy-nilly to state constitutions. Although it is possible, and perhaps desirable, to adapt the methods of constitutional positivism to the interpretation of state constitutions, substantial modifications must be made before such methods can be used successfully in this very different setting.

In their strongest statements, advocates of a state constitutional jurisprudence of constitutional positivism sometimes argue that only the narrowest positivist approaches to constitutional interpretation, such as textualism (2) or originalism, (3) should be applied to state constitutions. But even in its most general and moderate formulations, advocates of strict positivist approaches are united by a methodological belief that the job of the interpreter is, essentially, to pay really close and exclusive attention to the state constitution and its unique and exclusive interpretational props--its text, the intentions of its framers, its relevant history, and so on. Certainly, an interpreter proceeding in the strict positivist mode would have no business relying on the text, framers' intentions, or founding history of any other constitution; the central tenet of constitutional positivism is that the only constitution that is relevant for purposes of interpretation is the one under consideration, along with its unique associated body of interpretational aids.

Sometimes a jurisprudence of state constitutional positivism is justified on the ground that, because state constitutions are so easily and frequently amended, it is often possible to discern "the framers' true intent" (4) in a way that is sometimes impossible to accomplish when interpreting the U.S. Constitution due to its age. Thus, the argument goes, whatever its potential flaws as a tool of federal constitutional interpretation, a jurisprudence of original intent can be effective when applied to state constitutions. Others have argued that the tendency of state constitutions to regulate a wide variety of governmental activities in great detail makes many provisions of state constitutions unsuitable for any kind of analysis other than a purely textual one. (5) More generally, though, constitutional positivism is typically defended on the ground that it is the only sound methodology for interpreting any constitution, whether state or national. This is the view taken by adherents of what has come to be known as the "primacy" approach to state constitutional interpretation, (6) and it is the view that I want primarily to dispute.

A frequently-expressed frustration in the field of state constitutional law is that state courts often fail to follow the prescribed methodology of constitutional positivism: they ignore subtle (and sometimes not-so-subtle) cues contained in the state constitutional text; they fail to inquire into the views of the state constitution's framers; and they undertake no meaningful investigation into the history of their state or the development of its constitution. …