The Renaissance in State Constitutional Law: There Are a Few Dangers, but What's the Alternative?
Shepard, Randall T., Albany Law Review
The renaissance in state constitutional law is nearly in full bloom. Lawyers are becoming increasingly effective in asserting state constitutional claims, having been prodded by judges and commentators to consider state constitutional arguments on behalf of their clients.(1) Better-informed advocacy has in turn provided state court judges with increasingly well-reasoned grounds from which constitutional doctrine may grow.
The dialectic methodology inherent in our common law system, sacred to John Stuart Mill's conception of political community and to the philosophical foundation of current federal First Amendment free speech doctrine,(2) appears to be working its magic within the context of state constitutional jurisprudence. Legitimate decisionmaking frameworks, founded upon the text of our state constitutions and growing from the combined work of lawyers, students, scholars, and judges, are becoming more apparent each year.(3)
To some observers, however, the current dynamism of state constitutional law appears ungrounded. This perception gives rise to suggestions that all state constitutional jurisprudence is devoid of interpretative legitimacy.(4) My own retort to this and other criticisms is that the difference between legitimate and illegitimate state constitutional decisionmaking is not so much a matter of how one perceives the current relationship between state and federal governments, as it is a matter of maintaining an internal sort of interpretative integrity. Legitimate renaissance in this field depends on the willingness of courts to engage in vigorous and honest legal research and writing, oriented towards the text, history, and case law of the state constitution itself.(5)
This view stems from a belief that the primary creative force in state constitutional adjudication arises from the duty of trial and appellate judges to decide questions of law placed before them, rather than from exhortations by figures like Justice William Brennan, who emphasized individual rights as an end to be pursued for their own good, with state constitutions serving as a convenient means to that end.(6) Stated differently, because state court judges can hardly stipulate the non-existence of the organic instruments which empower them to act as judges, they really have little option but to strive to maintain the interpretative integrity of text and case law through vigorous research and writing,(7) i.e., the stuff which lies at the heart of all legal interpretation.(8)
If the key to legitimate interpretation is indeed within the grasp of judges, a survey of opinions dealing with state constitutional law should reveal that some opinions do indeed appear to be more true to the text of the respective constitution and the history and culture of the respective state involved than do others.
I will begin here, then, by summarizing recent developments and criticism in the area of state constitutional law to provide a context to frame the discussion that follows.(9) In Part II, I highlight some important opinions to demonstrate that there actually is a difference between legitimate and illegitimate state constitutional decisionmaking, and that the source of the difference often lies within the realm of interpretative integrity.(10) Finally, in Part III, I examine the limited alternatives state judges might take if they were to shun the current renaissance in state constitutional interpretation.(11) These alternatives are few and disreputable.
I. CONTRIBUTIONS AND CRITICISMS
Justice Robert Utter of the Washington Supreme Court has helpfully reminded us that the development of constitutional law, whether state or federal, is a jagged process.(12) "New judges, fragile majorities, poor facts, and still developing historical and legal scholarship" are all uncertain variables which sometimes lead to unstable law.(13) Still, it is apparent that the stock of intellectual capital capable of deployment in this endeavor is growing exponentially. …