The Puzzle of State Constitutions

Abstract

In his new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005), James Gardner positions state constitutions and their interpretation within federalism, in contrast to others who see state constitutions as largely independent of the federal constitution or as meriting primacy as their own interpretive texts. As Gardner suggests, understanding state constitutions within the larger national system challenges theorists to focus on the function that state constitutions, and sub-national constitutions more generally, perform within a national system. Gardner argues that a functional approach licenses courts to interpret state constitutions instrumentally to facilitate state resistance to national power. He endorses a rebuttable presumption that construes state judicial power to resist federal authority broadly, envisioning a bolder role than alternative theories for state courts in promoting federalism. After summarizing Gardner's approach, I will discuss two possible objections to it. First, his account is based on the primary goal of federalism as protecting liberty (broadly defined) against intrusion by national authorities. This liberty-based understanding of federalism, however, ignores or downplays that federalism may be understood in ways that are agnostic towards national authority. A broader understanding of federalism would give state courts clearer direction in implementing the goals of federalism and also would allow Gardner to extend his interpretive theory to subnational constitutional interpretation contexts outside of the U.S., where the protection of liberty may not have claim to being a primary historical rational for the recognition of state power. Second, even if we accept Gardner's account of federalism, his approach sees the core interpretive problem of state constitutionalism as centered around judicial power to resist the reach of national power. This court-centered approach downplays other important features of state constitutionalism. For example, as the recent disputes over same-sex marriage in California and Oregon remind us, other branches of government, such as the legislature or executive, could have a superior claim to interpreting a state constitution. Further, in some contexts there are strong reasons for understanding state constitutions as being focused on facilitating, not resisting, federal power. To the extent Gardner's approach views courts as resistors rather than facilitators of national authority, his interpretive tools may be limited in their ability to serve the goals of state constitutions - as where a state branch other than a court resists federal power and courts support it. Gardner's interpretive account does little to help courts solve such conflicts, thus inviting courts and scholars to do further interpretational groundwork. Notwithstanding these concerns, the broader framework Gardner lays out is the strongest starting place for a theory of state constitutional interpretation. His innovations for state constitutionalism allows scholars and courts to conceptualize a state constitution as something more than a positivist text in a jurisdictional vacuum, without rendering state constitutions irrelevant given the existence of national power in a federalist system. Gardner's functionalist approach and presumptions should be taken as a challenge for state courts, even though I believe that a mature enterprise of state constitutional interpretation must do more than adhere to a liberty-based notion of federalism or focus exclusively (or necessarily even primarily) on judicial interpretation.