Path Dependence and the External Constraints on Independent State Constitutionalism
New England Law – Boston Legal Studies Research Paper Series Research Paper No. 11-02
54 Pages Posted: 18 Apr 2011 Last revised: 5 Nov 2012
Date Written: April 15, 2011
The promise of “the New Judicial Federalism” – of the independent interpretation by state courts of state constitutional corollaries to the federal Bill of Rights – has gone largely unfulfilled. In terms of doctrinal development, the project of independent state constitutionalism, launched in earnest with the publication of United States Supreme Court Justice William Brennan’s call to arms in the pages of the Harvard Law Review, is today more an aspiration than a practice. State courts rarely engage in the difficult task of trying to establish doctrinal tests that do not flow from federal precedent. Why do these courts seem content to allow the U.S. Supreme Court to create the doctrine that governs shared textual commitments to individual rights and liberties, like the protections of free expression, privacy, due process of law and equal treatment before the law? I argue that the lack of independent constitutional analysis does not represent a failure of interest on the part of state courts, or a failure of methodology, character, or culture, but rather is simply the consequence of strong path dependence. This paper represents a descriptive effort, to explain both how and why state constitutionalism is often path dependent, and why the conditions under which state courts operate promote path dependence. I conclude that the fact of path dependence does not mean that state courts cannot make valuable contributions to constitutional discourse – that is, to the ongoing discussion among judges, advocates, commentators and citizens about constitutional meaning. Despite the constraints on the ability of state courts to innovate doctrinally, independent state constitutional interpretation in individual rights cases remains normatively desirable – but we must temper our expectations about what state courts actually may be able to accomplish in these cases.
Keywords: state constitutions, constitutional interpretation, new judicial federalism, independent state constitutionalism
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