The Rehnquist Court and State Constitutional Law

Abstract

Abstract On September 26, 1986, William Rehnquist was sworn in as Chief Justice of the United States Supreme Court. At that time the renaissance in state constitutional law was at its peak and the Supreme Court had decided Michigan v. Long. My task today is to discuss how the Rehnquist Court affected state constitutional law. As background, I discuss some general principles concerning state constitutional law prior to the Long decision. Then, I examine the response of the Rehnquist Court and state courts to the plain-statement requirement of Long, focusing specifically on the vexing problem of how a state court determines that its constitution provides greater protection of individual rights than are afforded under similar or identical federal constitutional provisions. Finally, I hope to demonstrate that the “criteria approach” used by the Supreme Court of New Jersey best balances the dual concerns of a state court, which are (1) to prevent its state constitution from becoming a mere shadow of the federal Constitution, and (2) to ensure that its state constitution does not unduly expand its citizens’ rights so that they bear only a slight resemblance to the protections found under parallel provisions in the federal Constitution.