Whose Federalism? or, Why "Conservative" States Should Develop Their State Constitutional Law

Article excerpt

As the 1996-1997 Term of the United States Supreme Court drew to a close, it became clear that the big winner was, once again, federalism. The Court held that there is no national constitutional right to die.(1) Consequently, the issue of doctor-assisted suicide is going to continue to be a matter for state lawmakers rather than federal judges. Nor, the Court said, may Congress create (religious) rights and impose them on the states under the guise of merely enforcing the Fourteenth Amendment.(2) That is, the states will be bound by the Supreme Court's interpretation of the Bill of Rights, not Congress's enlargement of it.(3) And, most forthrightly of all with respect to federalism, the central government, we are told in Printz v. United States,(4) cannot commandeer state law enforcers to implement federal gun control law.(5) The Brady Law thus runs afoul of the Tenth Amendment.

The Tenth Amendment! That mere "truism"(6) has once again become a potent restriction on federal authority. As liberals nervously ponder a future with a revived Tenth Amendment,(7) they have forgotten their darling, itself a product of that same Amendment: the "New Judicial Federalism."(8) Isn't it the Tenth Amendment that empowers and protects state courts when they broaden rights on state law grounds?(9) Doesn't the same principle of federalism that undid the Brady Law also enable Hawaii to recognize same-sex marriage,(10) Kentucky to strike down a ban on anal intercourse,(11) and a host of states to find a right to equal school funding that does not exist in the Federal Constitution?(12) Ah, but perhaps that is someone else's federalism.

In this Article, I wish to explore the implications for state courts of the continued development of Tenth Amendment principles. What if decentralization--the restoration of state authority--were to extend to the more bloated aspects of federal constitutional law? What if the Supreme Court were to say that only truly fundamental rights and those procedures essential to their maintenance are required by the Fourteenth Amendment, and that the Tenth Amendment leaves to state discretion all other procedural matters? In other words, what if the Court were to disincorporate some of the rotting planks (perhaps overly rigid planks is the better metaphor) of the federal floor? What if it were to overturn Miranda v. Arizona,(13) for instance, since it has said unambiguously that the famed warnings are not constitutional mandates?(14) Would the state courts be ready to develop, on their own, a responsible body of state criminal procedure law?

In one sense, the answer is surely "yes." The state courts have now demonstrated beyond peradventure that they are sensitive enough to individual rights to be trusted to protect them where they need to be protected, and to narrow them in an appropriate manner where they need to be narrowed.(15) They have already developed a body of state constitutional law much larger than is generally appreciated. Though most of this law mimics Supreme Court doctrine, a significant chunk of it establishes broader rights.(16) There is also compelling evidence--in the low number of federal court reversals (on habeas corpus petitions to the lower federal courts, and both habeas and direct appeals to the Supreme Court(17))--that the state courts do an admirable job protecting federal constitutional rights.

Unfortunately, however, not all states are comfortable with state constitutional law. Some state courts would be caught fiat-footed by disincorporation. They would have to begin taking state law much more seriously. Once some of the federal floor is eliminated, state law will have to move to the forefront because state law will be the only game in town. State law, in other words, will not just be an option, it will be a necessity. The states least prepared for disincorporation will be those that have resisted the development of state constitutional law. It is to these state courts--presumably among the most "conservative" state tribunals--that this Article is addressed. …