State Courts as Agents of Federalism: Power and Interpretation in State Constitutional Law
Gardner, James A., William and Mary Law Review
In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the United States Constitution. This reconciliation, however, is unavailable for state courts, which, by operation of the Supremacy Clause, cannot employ national law as a force for resisting national power while simultaneously appealing to it as a legitimating source of impartial restrictions on that power.
This Article argues that the tension between these understandings need not be resolved at all for state courts simply because there is nothing wrong with state courts using what powers they have to protect popular liberty by resisting, or by helping other state officials to resist, abuses of national authority. Through their control over state constitutions, state courts are capable of influencing the manner and the forcefulness with which state governments may wage the kinds of struggles against national authority contemplated by federalism. State courts may do so by folding into their interpretation of state constitutional provisions consideration of the "federalism effects" of their rulings--that is, the impact of their constructions on the ability of the state effectively to resist abuses of national power. In so doing, state courts become "agents of federalism."
The Article then considers and rejects a variety of strict constructionist objections to this approach to constitutional interpretation, discusses the conditions in which state courts might receive popular authorization to act as agents of federalism, and explores some of the ramifications for state constitutional interpretation of popular decisions concerning the authority of state courts.
TABLE OF CONTENTS INTRODUCTION I. FEDERALISM AND STATE COURTS II. STATE COURTS AS AGENTS OF STATE POWER A. The Affirmative Use of Granted Powers to Advance the Public Good B. Judicial Restraint of State Tyranny III. STATE COURTS AS AGENTS OF FEDERALISM A. Judicial Tools of Federalism Agency 1. National Tools of Judicial Federalism Agency 2. State Tools of Judicial Federalism Agency B. Federalism Effects as a Factor in State Constitutional Analysis IV. STRICT CONSTRUCTIONIST OBJECTIONS A. The Objection from Incoherence B. The Objection from Danger V. TRUST AND DISTRUST OF STATE COURTS A. Institutional Considerations B. The Record of State Courts as Guardians of Liberty VI. INTERPRETATION AND THE CONSEQUENCES OF FEDERALISM AGENCY A. A Brief Introduction to State Constitutional Interpretation B. State Constitutional Interpretation and Federalism Agency
In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a permanent struggle between state and national power. The ultimate beneficiaries of this power struggle are the American people, whose liberty is thus protected by a "double security." (1) The same American constitutional tradition also holds that courts are basically passive institutions whose mission is merely to apply the law impartially, while avoiding inherently political power struggles. (2) These two commonplace understandings conflict on their face. Courts are institutions of governance; the judiciary is, after all, one of the three coordinate branches of government created by the United States Constitution and by every state constitution. …