Intermittent State Constitutionalism

Abstract

Scholars have devoted little attention to explaining the gap between the seemingly logical and persuasive arguments for robust state constitutionalism in the law reviews and the actual spotty performance of state constitutionalism in the courts. To the limited extent that commentators have sought to cover the distance between "ought" and "is" (rather than debate whether state courts should give their constitutions independent meaning at all), the attempts have ranged from a description of state courts as simply incompetent, to a portrayal of state constitutions as too picayune and political to carry the weight of independent analysis. Some commentators have blamed advocates for not briefing state constitutional arguments" or even law schools for not training lawyers to be attuned to state constitutionalism. Some have even argued that state constitutionalism simply has not been around long enough to engage the courts. 

To develop my arguments, in Part II of this Article I look more closely at scholars' arguments in favor of a more consistent and vigorous state constitutionalism, followed by a discussion of some of the leading critiques of those theories.  Part III will examine the state constitutionalism as actually practiced in state courts, reviewing decisions from Oregon, Washington, New Jersey, and New Hampshire, all states that have adopted independent interpretations of their constitutions but not consistently. Part IV will seek to reconcile theory and practice by describing how state constitutionalism works to establish state-based communities, giving special attention to the culture-making role of lawyers in that process. Specifically, Part IV will emphasize different ways in which framing a political controversy as a state constitutional controversy is the main method for creating a state community, not the particular value or result favored by the state high court. In this sense, the medium is the message. Part V of this Article will explain why performing state constitutionalism only intermittently, even when faced with issues resolvable under state constitutions, is a sufficient approach to state constitutions to develop a sense of belonging in a state community. Because Americans owe allegiance to a variety of overlapping communities, including the Nation, courts and the communities they address will naturally view some public disputes as aspects of a state identity and other disputes as better resolved at different levels of government, or even extra-legally. In Part VI, I argue that the construction of state communities through intermittent state constitutionalism advances laudable goals by strengthening our values of participatory democracy, freedom, and pluralism.