Judicial Federalism: Power, Ideology,
Up to this point we have been making the case for the necessity, equality, and competence of the state judicial systems as part of a "harmonious and consistent whole"1 with the federal system. In this, the concluding chapter, we first review the positions and evidence adduced so far, we seek then to analyze them in the context of a nation of states, where legal matters are often intense and ubiquitous, and then turn to a discussion of the ideological dimensions of the argument. We conclude by looking at the entire case for judicial federalism in the context of effective public policy decisions.
We do not think the structure and function of judicial federalism is an inherent threat to individual liberties. However, we recognize that one of the premises upon which that belief is based is controversial. We speak of the premise that rights can vary from place to place, a proposition we find no more alarming or threatening than the statement that rights can vary from time to time, in other words that rights evolve.
In our analysis, not every right is applied, or should be applied, at a sufficiently high level of generality to require it to be observed and enforced in exactly the same way, everywhere, simultaneously. Even the most important of civil liberties, the right to speak freely, may have different applications and manifestations in different jurisdictions. The federal courts have recognized this in the area of obscenity by allowing different community standards as to the definition of obscenity, and therefore different rights to publish in different communities.2 Of course if one were to argue, as did the late justices Douglas and Black, that the____________________