Our republic consists of a national government and fifty state governments. Each has its own constitution as well as separate legislative, executive, and judicial branches. The powers and limitations of each government are established and defined by its constitution. Concomitantly, the judicial branch of each government is charged with interpreting its constitution as required in particular cases.
These fundamental principles are central to any discussion of the propriety of "independent state constitutional interpretation," such as that found in the current issue of this law review. In light of these principles, it would seem self-evident that the judicial branch of each government should apply its own constitution and not that of another state in resolving cases with which it is presented.
The logic of these simple propositions requires anyone who would question the propriety of a state court basing its decisions on its own constitution to initiate debate by first advancing arguments against such an enterprise. If each state government has a constitution and a judicial branch, why shouldn't a state court rely on its own constitution in deciding cases? Contrary to the criminal law maxim, the burden of proof in this instance is decidedly not on the state.
Beginning from the premise that independent state constitutional interpretation is presumptively valid, this Article analyzes the major objections to such interpretation which have been raised by recent commentators. After presenting and critiquing each of these attacks, this Article concludes that the legitimacy of state constitutional jurisprudence emerges unscathed from the fracas.
II. THE RESULT-ORIENTED NATURE OF STATE CONSTITUTIONAL ADJUDICATION
Critics of independent state constitutional interpretation frequently charge that state courts rely on state, rather than federal, constitutional analysis merely because prevailing federal law does not dictate the results state courts desire to reach in particular cases.(1) To take a simple example, the U.S. Supreme Court ruled in 1988 that the Fourth Amendment to the U.S. Constitution does not prohibit police from inspecting the contents of trash bags left on the curb outside a person's home.(2) Two years later, the Washington Supreme Court and the New Jersey Supreme Court, after duly noting the U.S. Supreme Court's contrary ruling under the Federal Constitution, both held that their respective state constitutions prohibited this police activity,(3) Critics argue that such decisions by state judges represent non-neutral interpretations of state constitutions, that are partisan reactions to federal constitutional rulings with which the judges disagree.(4)
This criticism springs from an obvious source. In the late 1970s, Supreme Court Justice William J. Brennan Jr., disappointed with what he viewed as the Court's refusal to expand further its protection of individual rights under the Federal Constitution, called on "state courts to step into the breach" by safeguarding civil rights and liberties through interpretation of their own state constitutions.(5) More than two decades later, it is apparent that many state courts have accepted Brennan's invitation. State courts have now rendered hundreds of decisions which grant greater protection to individual rights under state constitutions than the Supreme Court has been willing to afford under the Federal Constitution.(6) It is no wonder, then, that many critics of state constitutional interpretation see in this trend nothing more than an effort to achieve through state law certain liberal political results which federal law does not compel.?
In order to respond adequately to this criticism, it is important to review the process by which the U.S. Supreme Court became the nation's premier guardian of individual rights. The Constitution's Bill of Rights originally did not constrain the actions of state governments, but rather, operated only against the national sovereign. …