Reactive and Incompletely Theorized State Constitutional Decision-Making

49 Pages Posted: 18 Mar 2008


In this article, I argue that, when state courts have expanded protections under their state constitutions in reaction to a decision or line of decisions by the U.S. Supreme Court, those state constitutional decisions tend to be reactive and incompletely theorized - they are responsive to a ruling of the United States Supreme Court but lack an underlying rationale that provides a basis for the state court's differing constitutional judgment. I explore the phenomenon of reactive and incompletely theorized state constitutional decision-making and its consequences in the context of state court consideration of the reach of the exclusionary rule and, in particular, state court rejection of the good faith exception to the exclusionary rule adopted by the U.S. Supreme Court in United States v. Leon, 468 U.S. 897 (1984). I maintain that reactive and incompletely theorized state constitutional decisions are likely to have dispiriting effects on constitutional discourse and on state constitutional jurisprudence. From the perspective of constitutional discourse, a reactive, incompletely theorized decision is not likely to contribute meaningfully to the larger discussion among American jurists about the extent and nature of our commitments to such interests as individual privacy, as reflected in the protection from unwarranted searches and seizures. From the perspective of a state's constitutional jurisprudence, a reactive, incompletely theorized decision is likely to fail to supply judges, lawyers, government actors, and citizens with sufficient guidance to settle expectations about the bounds of those constitutional commitments. In conclusion, I suggest that hope for change lies more with the lawyers who argue state constitutional cases than with the judges who decide them.

Keywords: state constitutional law, search and seizure

JEL Classification: K19, K39

Suggested Citation

Friedman, Lawrence, Reactive and Incompletely Theorized State Constitutional Decision-Making. Mississippi Law Journal, Vol. 77, No. 1, 2007, Available at SSRN:

Lawrence Friedman (Contact Author)

New England Law | Boston ( email )

154 Stuart Street
Boston, MA 02116
United States
617-451-0010 (Phone)

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