State Law as "Other Law": Our Fifty Sovereigns in the Federal Constitutional Canon

Article excerpt

The Supreme Court's recent citations to and discussions of foreign law (1) have generated extensive and well-known controversy. (2) On the political front, members of Congress have attempted to pass legislation proscribing courts from relying on foreign materials in constitutional interpretation. (3) On the scholarly front, some commentators dispute whether foreign materials belong in the Court's "canon of constitutional authorities" at all, (4) while many others assert that international sources need not be stricken from the constitutional canon altogether but debate the appropriate circumstances and means for the use of foreign law in constitutional adjudication. (5)

While these controversies rage on, a more pervasive practice of citing the law of other jurisdictions has received little attention: the Court's citation of state law. (6) For decades, and in many cases that are now treated as landmarks in constitutional law, (7) the Court has explicitly relied upon state legislation in reaching its decisions. (8) This practice is not limited to cases in which the constitutionality of the particular state law is the question before the Court; rather, the Court also relies on state law in interpreting the meaning of various provisions of the Federal Constitution.

State law and foreign law both fall under the category of "other law," defined here as the law of a sovereign distinct from the one engaged in the interpretation. (9) State law, like foreign law, may share substance with United States law, but both state and foreign law are the products of a distinct political community's unique historical, social, and institutional forces. The Supreme Court has underscored this analogy between state and foreign law, treating state law as a form of "other law" in strands of its jurisprudence such as federal-state relations. Given the similarities between state and foreign law vis-a-vis the Constitution, it is striking that the Court's use of foreign law has generated intense controversy while its use of state law has been tolerated with scarcely a blink. (10)

This Note questions the disparate attitudes toward the Court's use of state and foreign law. (11) It examines whether state law citations are qualitatively different from foreign law citations. Arguing that the two are more alike than different, this Note questions the premises of an interpretive theory that could justify categorically rejecting foreign law citations while supporting state law citations. Such a theory is plausible only on specific and contestable empirical and normative assumptions that current discussions gloss over. More broadly, this Note aims to challenge intuitions regarding appropriate constitutional authorities by analyzing the underexamined practice of citing state law.

This Note proceeds in three Parts. Part I examines the Supreme Court's use of state law in four substantive areas--the Fourteenth Amendment, the Fourth Amendment, the Sixth Amendment, and the Eighth Amendment--presented in ascending order of how firmly established state legislation is in the applicable doctrine. Part II describes state law and foreign law as forms of "other law" and emphasizes that their value depends on one's preferred interpretive theory. To hold the pro-state, anti-foreign law position evident in contemporary commentary, one must subscribe to a theory that this Note terms "patriotic cosmopolitanism." Part III challenges the premises of patriotic cosmopolitanism and argues that a strong form of the theory, which would deem state law invulnerable to common criticisms of foreign law, relies on untenable distinctions. A weak form of the theory deeming state law a lesser evil is plausible, but only under certain normative and empirical assumptions that warrant further attention.

I. SUPREME COURT CONSULTATION OF STATE LAW IN CONSTITUTIONAL ANALYSIS

In numerous cases spanning a range of substantive areas, the Supreme Court has relied on state legislation in its constitutional analysis. …