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Comparing Apples to Apples: A Federalism-Based Theory for the Use of Founding-Era State Constitutions to Interpret the Constitution

35 Pages Posted: 31 Mar 2011 Last revised: 4 Nov 2011

Eric R. Nitz

Georgetown University Law Center

Date Written: March 28, 2011


Originalists - who interpret the Constitution historically by referencing the founding era - have often looked toward founding-era state constitutional provisions for interpretive guidance. Because these state provisions contain similar wording to the text of the Constitution, the argument goes, the Constitution’s words must have a similar meaning. Few judges and commentators, however, have examined how the Framers’ other great innovation - federalism - influences this interpretive practice. Most originalist interpreters simply assume the relevance of similarly worded state provisions.

This Note challenges that assumption. It argues that judges and scholars should consider the principles of federalism and state sovereignty when using state constitutions to determine the original meaning of the federal constitution. By failing to consider the federalist division of governmental authority when looking toward state constitutions, courts might 'import' into the Constitution reserved powers exercised in the state constitutional provisions. While most cases using state constitutions as interpretive tools have not examined the source of authority underlying the state provision, the Supreme Court has employed precisely this approach when determining the extent to which English law illuminates the meaning of the Constitution.

When considering the interpretive value of a founding-era state constitution, courts should determine if the state provision involves the exercise of a power reserved to the states or prohibited to the national government. If not, the state provision may be freely compared to the federal constitution. If, however, the state provision implicates a reserved or prohibited power, then the Court must interpret the federal provision in a manner consistent with the vertical division of governmental authority in America’s federalist system, even if such an interpretation requires applying different meanings to similar language in the state and national constitutions. Failure to consider the interpretive implications of federalism when consulting state constitutions is not merely an academic concern. In at least two instances - the exceptions carved from the First Amendment’s free speech protection and the recognition of self-defense as the primary purpose of the Second Amendment right to bear arms - the Court has given meaning to the constitutional text that undermines federalism and insults the concept of reserved powers.

Keywords: originalism, state constitution, constitutional interpretation, Constitution

Suggested Citation

Nitz, Eric R., Comparing Apples to Apples: A Federalism-Based Theory for the Use of Founding-Era State Constitutions to Interpret the Constitution (March 28, 2011). Georgetown Law Journal, Vol. 100, No. 1, p, 295, November 2011. Available at SSRN:

Eric R. Nitz (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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