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

Harvard Law Review, April 2007 | Go to article overview

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


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.

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 ...
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

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

Settings

Typeface
Text size Smaller Larger
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.