Interpretation and Authority in State Constitutionalism
Harvard Law Review
In I977, Justice Brennan delivered his now famous plea for a renaissance in state constitutionalism.1 As much as any judicial opinion he ever wrote, this plea has influenced the development of American constitutionalism. Since I977, there has been an outpouring of scholarly work as well as a renewed interest by bench and bar in the possibilities of state constitutionalism. Conferences are held and papers written in order to encourage its development.2 This essay is in the same practical style,
... e practical style, advocating a vigorous state constitutionalism. However, I abandon the central premise of most previous works, namely, that the interpretation of a state constitution must rely on unique state sources of law. Those sources include the text of the state constitution, the history of its adoption and application, and the unique, historically identifiable qualities of the state community. State constitutional law, it is assumed, can diverge from federal law only if the differences can be traced to one of these sources. This premise rests on an idea of state sovereignty that at best is a romantic longing for vibrant local communities and at worst misunderstands modern American constitutionalism. My aim is to show that state constitutionalism can survive the abandonment of this premise and that, in fact, the doctrine of unique state sources threatens to undermine the renewed interest in and growth of state constitutional law. My argument takes the following form. In the first two sections, I present a very brief overview of the contemporary state of federalism and the puzzling appearance of Justice Brennan as an advocate of state constitutionalism. I then elaborate a view of the interpretive character of constitutionalism. In so doing, I distinguish interpretation from truth: constitutionalism is not a single set of truths, but an * Professor of Law, Yale University. The Roscoe Pound Foundation provided support for research on this project. This Commentary is based upon a lecture presented at a forum for state court judges sponsored by the Foundation in July I992, the proceedings of which have been published as PROTECTING INDIVIDUAL RIGHTS: THE ROLE OF STATE CONSTITUTIONALISM (Barbara Wolfson ed., I993). ' See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, go HARV. L. REv. 489, 502-04 (I977). 2 See, e.g., Symposium: The Emergence of State Constitutional Law, 63 TEX. L. REV. 959 (i 985). I I47 II48 HARVARD LAWREVIEW [Vol. I06:II47 ongoing debate about the meaning of the rule of law in a democratic political order. At both the state and national levels, this debate focuses upon the ideas of liberty, equality, and due process, as well as upon the structures of representative government necessary to realize these values. Finally, I consider the relationship between authority and interpretation in constitutional law. Authority is necessary to maintain a political community, but the claim to authority is not itself grounded in interpretation. Authority terminates, but does not resolve, interpretive conflict. I argue for a state constitutionalism that respects this double distinction of truth from interpretation and interpretation from authority. The diversity of state courts is best understood as a diversity of interpretive bodies, not as a multiplicity of representatives of distinct sovereigns. The common object of state interpretive efforts is American constitutionalism. Each state court has the authority to put into place, within its community, its unique interpretation of that common object. Of course, state courts may not violate United States Supreme Court interpretations of federal law, but beyond this legal floor, federal courts have nothing to say about the way in which state courts exercise their authority to interpret state constitutionalism. I. STATE CONSTITUTIONALISM AND FEDERALISM IN THE MODERN AGE The doctrine of unique state sources rests upon an idea of the state as a sovereign, independent source of law. If this idea of independence is a necessary premise of a distinctive state constitutional law, then the renewed interest in state constitutionalism does not easily fit within the larger trends in the development of constitutional law. Modern constitutional law, as it has emerged from the federal courts, has generally focused on establishing national political authority on the one hand and protecting the autonomous individual on the other. Both are threatened by a vigorous state authority. Through the centralization of public authority, the individual has been largely freed from the authority of church,3 family,4 town,5 local militia,6 unions,7 3 See, e.g., Engel v. Vitale, 370 U.S. 42I, 424-25 (I962) (holding that organized prayer in public schools violates the Establishment Clause). 4 See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52, 72-75 (I976) (protecting an unmarried minor's access to abortion despite parental objection). 5 See, e.g., Moore v. City of East Cleveland, 43I U.S. 494, 498-99 (I977) (invalidating municipal zoning restrictions that favored nuclear families). 6 The first federal draft, conscripting men on a nation-wide basis, was enacted during the Civil War. See Act of March 3, i863, ch. 75, I2 Stat. 73I (I863). See generally JACK F. LEACH, CONSCRIPTION IN THE UNITED STATES: HISTORICAL BACKGROUND I62-385 (I952) (discussing the political, legal, and military history of the I863 Act). 7 See, e.g., Abood v. Detroit Bd. of Educ., 43I U.S. 209, 234-36 (I977) (holding that public employees cannot be forced to subsidize ideological activities of a union). 10 See, e.g., New York v. United States, 112 S. Ct. 2408, 2419-23 (1992) (invalidating on federalism grounds a federal law that compelled states to take title to radioactive waste from private parties). (invalidating a disposal fee levied only on out-of-state waste); Zobel v. Williams, 457 U.S. 55, 65 (I982) (invalidating an Alaskan dividend distribution law that disfavored new entrants into the state by conditioning amounts on years of residence); City of Philadelphia v. New Jersey, 437 U.S. 6I7, 626-27 (I978) (invalidating a law that banned the use of waste disposal sites for almost all waste that originated in other states). 12 See, e.g., Pope v. Illinois, 48I U.S. 497, 500-01 (I987) (holding that the "literary, artistic, political or scientific value in allegedly obscene material" must be evaluated under a reasonable person standard and not under a community-specific standard).