Federalism, Liberty, and State Constitutional Law
In previous chapters we have explored the possibility that state governments, and particularly state courts, are competent to play a meaningful role in the preservation of liberty. Most of that discussion has focused on state court adjudication of federal constitutional and statutory provisions. In this chapter, we address a different source of rights. We look now at state courts' interpretations of their own constitutions, acting independently of the federal constitution. It is often said that the U.S. Constitution establishes a "floor" of rights, below which the states may not go, but above which they are free to roam. This metaphor is simplistic and possibly misleading for many of the reasons discussed in chapter 2. However, for the sake of discussion, we assume that a citizen of a state must be provided all of the protections guaranteed by the federal government, and that states may interpret their own constitutions in any way that does not dilute those protections.
For the past two decades, some state courts have exercised what has been termed "the new judicial federalism." This refers to the practice of interpreting state constitutions in ways that expand and enhance the rights of the citizens of that state. At first blush, this would seem to be an example of federalism promoting liberty. But the phenomenon is too complex and ambiguous to allow such a facile conclusion. We address two of the major ambiguities in this chapter.
The first ambiguity relates to the actual performance of state courts. We consider the recent development of state constitutional law. The large literature on this topic, for the most part, advocates increased independence by state judiciaries in interpreting their own constitutions. One problem, however, is that state judges may not be keeping up with the literature, for empirical studies show that most state supreme courts simply follow federal constitutional law closely in cases involving individual rights. A case using the state constitution alone to sustain a rights claim is a comparatively rare event. If that pattern endures, what are the implications for the relationship of federalism to liberty? On the other hand, if state