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

By Gardner, James A. | William and Mary Law Review, February 2005 | Go to article overview

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


Gardner, James A., William and Mary Law Review


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.