The Past and Future of the New Judicial Federalism

Abstract

This article argues that the new judicial federalism, the increased reliance by state judges on state declarations of rights to secure rights unavailable under the U.S. Constitution, represents not a return to an earlier federalism but rather something new. Although the basis for a state civil liberties jurisprudence had long existed, the “discovery’ of state constitutional guarantees did not occur until the Warren Court pioneered an approach to civil liberties that state courts could emulate. This “discovery” has led to only intermittent reliance on state guarantees. Nonetheless, it is unlikely that state judges will return to the total deference to federal rulings in civil liberties cases that characterized preceding decades.