Academic journal article William and Mary Law Review

State Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or Prospective Lockstepping?

Academic journal article William and Mary Law Review

State Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or Prospective Lockstepping?

Article excerpt

Some states appear to be adopting, apparently in perpetuity, all existing or future United States Supreme Court interpretations of a federal constitutional provision as the governing interpretation of the parallel state constitutional provision.

Today's courts are qualifying these precedents; they explain that past adherence to federal decisional law does not signify that the state court is bound to construe the state constitution in accordance with the federal interpretation of the federal constitution for all times and under every circumstance.

--Honorable Shirley S. Abrahamson

Supreme Court of Wisconsin (1)

INTRODUCTION

Since the beginning of the New Judicial Federalism, (2) there has been heated debate over state court interpretation of state constitutional rights provisions that are identical or similar to federal constitutional provisions that have already been interpreted in a certain way by the United States Supreme Court. (3) The "shadow" (4) or "glare" (5) of these United States Supreme Court decisions, both as to their substantive outcome and their techniques of constitutional interpretation, seem to raise legitimacy questions about state courts reaching more protective, often more liberal, results when they interpret their own state constitutions. (6) These questions arise from America's system of dual enforcement of constitutional norms.

Much legal literature and many state judicial opinions have addressed such questions, often presenting arguments as to why it is, in fact, legitimate for state courts to "diverge" from the United States Supreme Court's interpretation of similar or identical provisions in the Federal Constitution. The literature has even differentiated between such provisions, contending that where the United States Supreme Court "underenforce[s]" certain federal constitutional norms, such as the Equal Protection Clause, (7) or where "strategic concerns" in enforcing such norms differ between the state and federal systems, state courts are even more justified in diverging from the Supreme Court's interpretation of the Federal Constitution. (8) State courts might even agree with the United States Supreme Court on the meaning--both textually and historically--of identical or similar federal and state constitutional provisions, but proceed to apply them differently under particular circumstances. (9) This is a discussion that continues to become more sophisticated, both in the courts and in the academic literature. (10)

I. STATE COURT ADOPTION OF FEDERAL CONSTITUTIONAL DOCTRINE: THE FORMS OF LOCKSTEPPING

Much less attention has been devoted, however, to the circumstances where state courts decide to follow, rather than diverge from, federal constitutional doctrine. This is, in fact, the clear majority of cases, (11) and represents an important feature of the dual enforcement of constitutional norms. Michael Solimine and James Walker have argued that this prevalence of lockstepping supports the view that there is "parity" between federal and state courts as effective enforcers of federal constitutional norms. (12) Alan Tarr has noted that, by contrast to the great question in federal constitutional law about the legitimacy of judicial review itself, the central question in state constitutional law concerns the legitimacy of state constitutional rulings that diverge from, or "go[] 'beyond,'" federal constitutional standards. (13) Perhaps the time has come to raise the issue of legitimacy, as well as other questions, about state courts adopting federal constitutional standards. (14)

What are the implications for state constitutional law when state courts decide to interpret their state constitutional provisions in the same manner--or to reach the same outcome--as the United States Supreme Court under a similar or identical clause of the Federal Constitution? How does this "doctrinal convergence" actually work? (15) Upon closer examination, there is a range of different approaches, each with different implications. …

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