Leaky Floors: State Law Below Federal Constitutional Limits

Abstract:     
One of the most widely accepted notions in American constitutional law is that the federal constitution and interpretations of the federal constitution by the Supreme Court of the United States set a "floor" for personal liberties. State courts and legislatures cannot properly go below the federal floor. It is a position anchored to plain constitutional text in the form of the Supremacy Clause. In the area of criminal procedure, however, it is easy to find state positions both "above" and "below" the federal constitutional requirements. On closer inspection, this should not be a shock. The concept of a floor conflicts with our modern consensus about the nature of judicial opinions and the constraining power of language. It is also out of sync with theories about how legal institutions interact. The floor concept also ignores the capacity of legislatures and executive branch agencies to use their powers, including the power to establish and fund government entities and to set detailed policy and administrative rules, to work around even the most seemingly stringent federal limits. We expect that this insight is not peculiar to criminal procedure but something more general about the interaction between state and federal law.

Number of Pages in PDF File: 34

Keywords: Federalism, Constitutional Interpretation, Independence, Cheating, Habeas corpus, Judicial review

Accepted Paper Series