Reverse Incorporation of State Constitutional Law

Abstract

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous issues under those constitutions. Such issues are common because the documents were modeled after one another and contain many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal Constitution. In McDonald v. City of Chicago, to take one recent and high-profile example, the Court declined to adopt the state courts’ near-unanimous conclusion that the proper standard of review for regulations of the “individual” right to keep and bear arms is a form of “reasonableness” review.In an age of growing international comparativism, this lack of intranational borrowing is striking, especially since state constitutions served as the template for the federal Constitution and generally protect the same rights as are found in the federal Bill of Rights. In a constitutional system that claims to be committed to federalism and respect for the states, why is it that state constitutional law has had such a slight impact on federal constitutional doctrine? This Article seeks to answer that question, and suggests that in certain circumstances federal courts should look to state constitutional law when faced with analogous federal constitutional controversies.