Beyond Paradigms: State Court Adjudication of Federal Rights
The federal structure of the United States was, in part, intended to insure individual liberty. It must by now be obvious that we think it has, in part, succeeded. In this chapter, we focus on one way that these individual rights are tested, that is by litigation in state courts. We are interested particularly in those rights derived from federal law (i.e., the U.S. Constitution and federal statutes). The litigation of federally guaranteed rights in state courts has been common from the birth of the republic to the present day. But it remains, to some, deeply problematic. In short, many criticize the state courts as not being up to the task of "rights protection." We hope to demonstrate in this chapter that the criticisms of state courts and judges in the protection of individual liberties are greatly overstated.
From their inception, federal court doctrine assumed that state courts are ready and able to fully and fairly adjudicate federal rights. There is, however, a line of cases, and some scholarly authority, that continues to question that assumption. In this chapter we summarize and critique the empirical evidence that has been brought to bear on this difference of opinion. In shorthand, this is the debate over the "parity," between state and federal courts, i.e., the availability and qualitative receptivity of state courts to adjudicate and, where appropriate, uphold federal rights. Although difficult to measure and evaluate, we conclude that relative parity exists between state and federal courts to do just that.
The debate over the existence of parity springs from the initial establishment of the lower federal courts by the Constitution. Article III of the Constitution provides that there "shall" be one Supreme Court, but the Congress "may" establish lower