State Constitutional Interpretation Research Articles

Preemption and Entrenchment of the State/Local Divide

Recent state legislative enactments that preempt local legislation also include novel provisions that impose significant penalties on municipalities or individuals who challenge the state’s action. These penalties include loss of funding or loss of office for localities or officials who assert a local right to pursue policies in conflict with the state legislation. Notwithstanding widespread criticism of the practice, commentators have concluded that the traditional conception of the state’s plenary power over its municipalities, a restrictive view of home rule, and the absence of a federal constitutional violation leave affected municipalities and individuals with little legal recourse against “penalty preemption.” This article proposes an interpretation of state constitutions under which penalty preemption would largely be declared invalid. That interpretation asserts that state constitutions do not, in fact, provide legislative authority over political subdivisions that is as plenary as states have asserted. Instead, state constitutions have historically been interpreted as containing both explicit and, importantly, implicit principles that constrain legislative action. Courts have invoked those implicit principles to invalidate legislation enacted at the behest of a politically dominant group that is seeking to entrench its current majority position over an area that is reasonably viewed as subject to the vicissitudes of normal politics. This article contends that the proper allocation of authority between states and their political subdivisions constitutes such an area of contestation. By entrenching the dividing line between state and local authority, penalty preemption legislation represents an exercise of raw political power rather than an effort to allocate government authority in accordance with any principle that is appropriate for state preemption. Courts have the capacity to invalidate legislative entrenchment of the state/local divide that constitutes such an assertion of political power just as they done with respect to other efforts to entrench temporary majorities.

Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution

This article studies the opinions of Indiana Supreme Court Justice Brent E. Dickson in three cases in which he interpreted and applied several of the seven religion provisions of the Indiana Constitution. His opinions in these cases provide insight into the Indiana Supreme Court's and his method of constitutional interpretation, and they explicate the meaning of several of Indiana's religion provisions. This study develops in several steps. First, it discusses the three Indiana Supreme Court cases. Second, it explores the court's method of state constitutional interpretation, which Justice Dickson helped to bring into sharper focus. Third, it analyzes his interpretation of several religion provisions in these cases. Fourth, it concludes with some observations regarding his careful application of the court's interpretive method and key features of the court's religion provisions jurisprudence.

Specyfika konstytucjonalizmu stanowego w USA

Peculiarities of American State Constitutionalism The article summarizes major peculiarities of American state constitutionalism, understood as a set of general principles governing form, legal nature, and content of state constitutions. It focuses primarily on the areas in which state constitutions differ from the federal Constitution. With the large difference in length as its starting point, the article analyzes such features of state constitutions as greater level of detail, broader catalog of constitutional subject matters, frequent incidence of constitutional legislation, plenary as opposed to enumerated character of state governmental powers, and relative ease of constitutional change at state level. It concludes that the foregoing features of state constitutions primarily reflect distrust in state governments (particularly legislatures) and willingness of political actors to treat constitutions as ordinary policy instruments as opposed to fundamental law. The article further examines the influence of those features on state constitutional interpretation, noting that the greater specificity and elasticity of state constitutions on one hand diminishes importance of originalism, but on the other hand – promotes strict textualism and is one of the leading causes of lesser incidence on informal constitutional changes (especially judge‑made) in the states.

DIFFICULTY OF AMENDMENT AND INTERPRETATIVE CHOICE

The extreme difficulty of amending the U.S. Constitution plays a central but largely unexamined role in theoretical debates over interpretive choice. In particular, conventional wisdom assumes that the extreme difficulty of Article V amendment weakens the case for originalism. This view might ultimately be correct, but it is not the freestanding argument against originalism it is often presumed to be. Rather, it depends on contestable normative and empirical premises that require defense. If those premises are wrong, the stringency of Article V might actually strengthen the case for originalism. Or Article V might have no impact on that case one way or another. This “complexity thesis” highlights and clarifies the role that difficulty of amendment plays across a range of significant interpretive debates, including those surrounding writtenness, John Hart Ely’s representation-reinforcement theory, interpretive pluralism, and originalism as a theory of positive law. It also has important implications for the under-studied relations between statutory and constitutional interpretation and federal and state constitutional interpretation.

Difficulty of Amendment and Interpretive Choice

The extreme difficulty of amending the U.S. Constitution plays a central but largely unexamined role in theoretical debates over interpretive choice. In particular, conventional wisdom assumes that the extreme difficulty of Article V amendment weakens the case for originalism. This view might ultimately be correct, but it is not the freestanding argument against originalism it is often presumed to be. Rather, it depends on contestable normative and empirical premises that require defense. If those premises are wrong, the stringency of Article V might actually strengthen the case for originalism. Or Article V might have no impact on that case one way or another. This “complexity thesis” highlights and clarifies the role that difficulty of amendment plays across a range of significant interpretive debates, including those surrounding writtenness, John Hart Ely’s representation-reinforcement theory, interpretive pluralism, and originalism as a theory of positive law. It also has important implications for the under-studied relations between statutory and constitutional interpretation and federal and state constitutional interpretation.

Foreign Precedent in State Constitutional Interpretation

The use of foreign law in constitutional interpretation has been met with intense criticism and commentary. Indeed, few subjects in constitutional law have attracted more attention in the last two decades. Justices, scholars, politicians, and pundits have all weighed in on how and whether American courts should consider foreign law when interpreting domestic constitutional provisions. The issue is now standard stock for questioning at judicial confirmation hearings, and law reviews have dedicated hundreds — perhaps thousands — of pages to related analysis and commentary. Despite this impressive tome of literature, this essay draws attention to an issue that the vast majority of commentators have overlooked. Almost all of the commentary on this issue has focused exclusively on whether it is appropriate for judges to use foreign precedent when interpreting the U.S. Constitution. Hardly anyone has stopped to ask whether state constitutional interpretation raises unique comparative issues or whether existing criticisms of using foreign precedent apply equally to state constitutional interpretation. This essay suggests various reasons why the debate regarding comparative analysis may be very different when a judge is interpreting a state constitutional provision rather than the U.S. Constitution.

Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures

Every state in the Union has a state constitutional provision purporting to guarantee a right against unreasonable searches and seizures. And every state supreme court in the country frequently invokes originalism as the basic method of state constitutional interpretation, and has been doing so for a very long time. Yet almost no state adheres to the original meaning of its search and seizure provision. Rather, state supreme courts assume that the remedy for unreasonable searches or seizures is exclusion. The problem with this arrangement, as other scholars have noted with regard to the Fourth Amendment, is that there is an unjustifiable remedial gap — innocent people have no constitutional recourse. And what that really means is that innocent people actually do not have a right to be free from unreasonable searches and seizures. This should not be the case.To date, no scholar has addressed this problem with regard to state constitutional law. This Article breaks new ground in the field of state constitutional law and originalism by analyzing the original meaning of the search and seizure provisions of all fifty states. This is accomplished by examining the texts of all fifty search and seizure provisions, caselaw from the nineteenth and early twentieth centuries that is both temporally and geographically diverse, and state constitutional conventions. Based on these sources, this Article concludes that nearly every state shares a common original meaning when it comes to search and seizure provisions. And that original meaning fixes the remedial problem described above by providing to every citizen, guilty or innocent, a self-executing, constitutional tort that protects interests of privacy, property, dignity, and reputation via damage awards that are both compensatory and punitive. Courts should return to this original meaning so as to ensure that all state citizens actually have the right to be free from unreasonable searches and seizures.

Lawyers Need Law: Judicial Federalism, State Courts, and Lawyers in Search and Seizure Cases

The progress of judicial federalism, the independent interpretation of state constitutions, has generally been a stunted progress. This article explores how lawyers have contributed to the development of state constitutional rights law in the search and seizure context. Through a comparative study of lawyers in New York, Ohio, Oregon, and Washington, I argue that the ideational support provided by lawyers in the form of constitutional arguments has varied widely across the states in response to the legal signals sent by their high courts and the U.S. Supreme Court. In essence, the argument is that lawyers need law and in the area of judicial federalism have largely waited for their state courts to provide some measure of leadership.

Human Rights in State Courts 2014

The Opportunity Agenda and the Program on Human Rights and the Global Economy of Northeastern University School of Law have released a new report, Human Rights in State Courts 2014. The report reviews state court decisions and Attorneys General opinions interpreting human rights treaties, laws, and standards.Since the last version of this report was released in 2011, litigants have continued to use international human rights law in their arguments before state courts. In fact, the range of cases in which international law arguments are offered seems to have increased, now encompassing environmental claims, tort cases, and guardianship matters. Many of these arguments have been cursorily dismissed, with a few courts and individual judges staking out their opposition to the application of international human rights law. However, some state courts have considered and affirmatively used international law as persuasive authority for the interpretation of state constitutions, statutes, and common law. Further, individual judges regularly draw on human rights norms in concurring or dissenting opinions.This updated publication includes previously reported cases as well as those that have been decided since the 2011 edition. Highlights of the new report include the following developments:-The Massachusetts Supreme Judicial Court gave retroactive effect to a U.S. Supreme Court ruling that sentencing a juvenile to life without the possibility of parole is unconstitutional, citing international law in support.-A Maryland Court of Appeals considered the Universal Declaration of Human Rights (UDHR), and its recognition of the right to “family life” as a marker of fundamental fairness, when deciding upon a due process challenge to a guardianship proceeding.-The Tennessee Attorney General addressed international human rights law when a state representative inquired as to whether a bill to prohibit and criminalize observation of state elections by United Nations (U.N.) officials violated the United States Constitution. The Attorney General determined that the bill would likely violate the Supremacy Clause and noted that U.N. officials would be immune from prosecution under the Convention on Privileges and Immunities of the United Nations, to which the United States is a party.-A dissenting judge in an Iowa Supreme Court decision, addressing the right to education under the state constitution, would have used the human rights norms as a tool for interpreting the Iowa constitution. The dissent cited the UDHR for the proposition that education is essential to the development of an autonomous individual with dignity.-State courts continued to consider claims arising under Article 36 of the Vienna Convention on Consular Relations, generally finding that the treaty does not grant defendants the right to any actual assistance by consular officials, as opposed to a right to consular notification.-There continue to be a host of cases citing the Hague Service Convention for guidelines to proper service of process between parties residing in signatory countries. Additionally, the Hague Convention on the Civil Aspects of International Child Abduction continues to play a substantial role in guiding courts in child custody hearings.-Regional international norms articulated by the Inter-American system figured in several cases. For example, a Connecticut Superior Court utilized the Inter-American Convention on Letters of Rogatory and Additional Protocol to impose proper service of process when it found that protocols under the Hague Service Convention were not applicable.-A New York court stated that while the U.N. Convention on the Rights of Persons with Disabilities is not binding under New York law, the international adoption of a guarantee of legal capacity for all persons is entitled to persuasive weight in the interpretation of local laws.

The Puzzle of State Constitutions

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.

Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the polity that creates a constitution must be unique, determinate, and self-constructed. These are exactly the conditions that American state polities fail to satisfy, and which cannot be satisfied by any subnational unit in a system of true federalism. In such a system, subnational units are autonomous sovereigns for some purposes but not for others, and thus are simultaneously both independent, autonomously self-governing entities and hierarchically subordinate dependencies of the national government. As a result, national norms are part of the constituting matrix of the state polity, and consequently of its constitution. This in turn means that interpretation of state constitutions inevitably will require at least some resort to national norms and sources of national constitutional meaning. Yet constitutional positivism prohibits such a move, for it forbids the interpretation of one constitution by reference to sources of meaning established by some other polity and appearing in some other constitution. It is telling that one of the most common phenomena in state constitutional law today is so-called lockstep interpretation, in which state courts construe provisions of state constitutions to have precisely the same meaning as similar provisions of the U.S. Constitution. For this they have been routinely criticized. My argument here suggests that this criticism is not necessarily well founded.