The Once and Future Constitutional Law: On the Law of American State Constitutions

Abstract

Since its publication, Robert F. Williams’ book, The Law of American State Constitutions, has attracted a great deal of positive attention, with commentators praising many of its varied contributions to our understanding of state constitutional law. In particular, reviewers have focused on Williams’ treatment of the origins, evolution, and methodology of the New Judicial Federalism. The story of the New Judicial Federalism is one worth telling, and I address some of Williams’ conclusions about its significance in this review, as well as his consideration of state constitutional interpretation outside of the individual rights context -- when recourse to federal doctrinal concepts may not be an option. I focus on Williams’ discussion of judicial construction of structural provisions that guide the process of political decision-making, an issue without parallel under the U.S. Constitution. I then return to the subject of rights interpretation by state courts operating in constitutional space dominated by the Supreme Court, examining the value of independent state constitutionalism in light of Erwin Chemerinsky’s argument that state constitutions are “a second-best alternative for advancing liberty and equality.”