Constitutional Incorporation: A Consideration of the Judicial Function in State and Federal Constitutional Interpretation
52 Pages Posted: 12 Jun 2017 Last revised: 29 Jun 2017
Date Written: June 8, 2017
When constitutional courts are called upon to construe generally phrased provisions in the federal or a state’s constitution, they necessarily exercise interpretive agency. This judicial agency is thought by some to be in tension with the values of democratic governance. One strategy for dealing with this perceived problem is to institute a preference for incorporating prior judicial interpretations as a way of reducing the overall incidence of new judicial decisionmaking. This strategy was pressed particularly in the mid-twentieth century by Justice Hugo Black, who called on the U.S. Supreme Court to incorporate the Court’s prior interpretation of the Bill of Rights as a means of interpreting Section One of the Fourteenth Amendment. In instances in which a state supreme court is asked to construe a state constitutional provision that is analogous to a parallel federal constitutional provision, some have urged the state court to systematically defer to the prior interpretation of the parallel federal provision by the U.S. Supreme Court. This position, styled the “lockstep” approach, involves a kind of incorporation of a prior judicial interpretation, as do both the selective and total incorporation approaches to interpreting the Fourteenth Amendment.
This Article reviews the competing conceptions of the judicial role and function articulated in the context of the Fourteenth Amendment incorporation cases, and evaluates the background assumptions and broader calculations that energized that debate both on the Court and among mid-twentieth century constitutional law scholars. It then traces the somewhat parallel debate that has taken place over the past several decades among state supreme court Justices and academics interested in state constitutional interpretation. The Article concludes by explaining why a passive spectator’s role for constitutional courts, which is assumed by arguments for incorporation in the Fourteenth Amendment context and for a rule requiring automatic or presumptive deference by state courts to the prior judicial interpretation of parallel provisions in the federal constitution by the U.S. Supreme Court, is both undesirable in our democratic system and unrealistic. The Connecticut Supreme Court’s recent decision in State v. Santiago is offered instead as an example of how a state court should proceed with appropriate agency in interpreting state constitutional text.
Keywords: constitutional interpretation, state courts, fourteenth amendment, judicial function, state practice, due process, selective incorporation, individual rights
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