A Constellation of Constitutions: Discovering & Embracing State Constitutions as Guardians of Civil Liberties

By Rush, Loretta H.; Miller, Marie Forney | Albany Law Review, Summer 2019 | Go to article overview

A Constellation of Constitutions: Discovering & Embracing State Constitutions as Guardians of Civil Liberties


Rush, Loretta H., Miller, Marie Forney, Albany Law Review


In the 1980s and 90s, a message to reinvigorate reliance on state constitutions gathered momentum, (1) producing a now-familiar refrain: state constitutional law plays an important role in securing the liberties that flow from federalism, and it deserves greater attention. (2)

Despite the swell of state constitutionalism in the late twentieth century, and notwithstanding academic and judicial attention to the topic since then, (3) appreciation of state constitutions hasn't attained a level of traction that reflects these charters' great value as guarantors of civil liberties.

Today, litigants still fail to bring or adequately argue state constitutional claims that offer potential relief. (4) Courts accordingly decline to clarify the nature and extent of state constitutional protections. And law schools still exclude state constitutional law from the standard curriculum, offering few courses to equip new attorneys with the knowledge and knowhow to identify and argue state constitutional claims effectively. (5)

As a result, powerful liberty protections sit latent from disregard. This creates a high risk that individuals' rights are trampled without redress--simply because the rightsholders or their attorneys didn't argue a state constitutional claim. In other words, state constitutionalism presents a use-it-or-lose-it situation: either use the state constitution or lose the protections it provides.

To be sure, the entire legal community is responsible for realizing the value of state constitutions. And I'll offer some ways actors in various capacities can fulfill this crucial obligation. But one thing judges can do is issue writings, in cooperation with law-review journals, highlighting the import of state constitutional law. This article seeks to be one of those contributions.

The immediate goal is to instill greater understanding of and appreciation for state constitutional law as a powerful protector of civil liberties. The intermediate goal is for state constitutional law to become more readily invoked by litigants, so that state courts may illuminate and apply state constitutions' shields against encroachment on rights. And the ultimate goal is for state constitutional law to better facilitate the beneficence of federalism while enhancing the development of constitutional law throughout the United States.

To those ends, this article begins by reviewing the roles that state and federal constitutional law play in federalism's diffusion of power. It next surveys various factors that contribute to the individual identities of state constitutions. Then, to illustrate similarities and differences among constitutions, it draws cross-state comparisons of state constitutions' origins, contents, and interpretations by respective supreme courts, anchoring those comparisons in Indiana constitutional law. And finally, it offers ways the bench, bar, and academy can embrace state constitutional law and appreciate the constellation of state constitutions that can shine as a result.

I. How STATE CONSTITUTIONAL LAW--THROUGH FEDERALISM--PLAYS AN INTEGRAL ROLE IN SECURING CIVIL LIBERTIES

The importance of state constitutional law in protecting civil liberties is nothing new. When state constitutions were first adopted, their significance to people's rights was readily apparent, "[I]ndividuals looked to state constitutions and state courts, not the federal courts, for protection of their constitutional rights," and the contents of state constitutions fueled considerable debate. (6)

But the landscape of American law has shifted over the years, obscuring some areas of state constitutionalism and raising new questions about its function and importance, particularly relative to federal constitutional law. (7) Scholars and jurists have offered helpful insights with empirical data, in-depth jurisprudential theories, and thorough inspection of state- and federal-law interactions. (8) These writings expose both the continuing importance of state constitutionalism and the compelling reasons to cultivate it in this day and age. …

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