Interpreting State Constitutions: A Jurisprudence of Function in a Federal System.

Interpreting State Constitutions: A Jurisprudence of Function in a Federal System

James A. Gardner University of Chicago Press www.press.uchicago.edu 467 pp., $65

Our constitutional system is mostly theory. It is our identity as a self-governing society that forms us, yet is hidden from us, like the subatomic particles that physicists cannot see. None of us--no citizen, no judge, no juror or legislator--comes into a law office on a Tuesday and signs the social contract on the dotted line. We have inherited the American constitutional system. We did not create it, yet it is ours to understand and improve if we can. Paradoxically, our founding precepts as a free political community are defined--some would say continually redefined--by this struggle to share a concept of our organic law.

State constitutions, and their evolving place in our federal system, are especially challenging to understand and use. James Gardner, a law professor at the University at Buffalo, part of the State University of New York, has written a masterful, deeply intelligent book that offers new insight into how state constitutions should and do function. Slim, timely, and fluidly readable, it is an excellent first book on state constitutional law for those new to the subject; but it intends to be, and is, a meaningful contribution to the field.

Gardner tells us in his foreword that the book "is an attempt to devise a new and different language in which to address and persuade state courts in cases arising under state constitutions." The book is original, and though it may not create an entirely new language, it adds important vocabulary and insight to the discourse we have.

The book sums up more than a decade of Gardner's provocative writing in what he calls the "stubbornly difficult field" of state constitutional law, beginning with a 1992 Michigan Law Review article, "The Failed Discourse of State Constitutionalism." There, Gardner argued that state constitutions and their amendment processes have given the states a hodgepodge of provisions ill-matched to the documents' function in a federal system, and that state courts' rulings on those provisions have been little better.

He critiques the status quo with a new view, here developed further than in his earlier writings, of the prevailing theory of state constitutional interpretation known as the "New Judicial Federalism." That paradigm first gained wide currency in an influential 1977 Harvard Law Review article by Supreme Court Justice William Brennan, who argued that as federal courts became increasingly disinclined to protect individual rights under the Bill of Rights, the need and the opportunity would grow for state constitutions to supply the missing protections.

With this blessing from one of the judiciary's foremost advocates of "living" constitutions, scholars and courts increasingly undertook to read state constitutions differently from the federal document. That enterprise continues today, aided by U.S. Supreme Court opinions and by scholarly writing from some of the nation's most respected state court judges.

But what to do with a state constitutional provision that is word-for-word the same as a federal one? What principled reasons are there for reading identical language differently depending on which constitution contains it? When do we invoke this notion of separate constructions, which Gardner has called the "discourse of distinctiveness," and when do we just sit back and let the federal courts construe the disputed language for all constitutions in which it appears? And what does this state law problem have to do with federalism? Everything, as it turns out; but to reach his conclusions, Gardner, to some extent, rethinks federalism itself.

To understand how to read state constitutions, Gardner reasons, we must first understand how they function in, and help define, a federal system in which each level of government operates as a protector of liberty from abuses by the others. That is the "functional" analysis of his title, and it goes beyond the "dual sovereignty" concept as articulated by other scholars.

Gardner, of course, understands that state and federal sovereigns have different roles, but he argues that the architecture of our federal system--one national and many state governments, each with its own constitution and laws--presupposes that each sovereign exists to protect the rights it discerns in its people against abuses by the other sovereigns. States sometimes must protect their people from abuses of their liberty by the national government (think state constitutional decisions on privacy, free speech, the death penalty, and rights of the accused), just as the national government sometimes finds it necessary to protect the people from abuses by their state governments (think the Civil War, Brown v. Board of Education, and the 1960s civil rights statutes).

Yes, Gardner says, state constitutions, and state court rulings on them, can influence and to some extent offset the behavior of all three branches of the federal government. He tells us this might happen in small and possibly unsatisfactory ways, perhaps by substituting lesser state-recognized rights for more preferred rights that federal courts have rejected. But the process is still meaningful, perhaps akin to the moon's effect on the Earth: a modest pull, but significant because the larger body is sensitive to it.

Gardner critiques the New Judicial Federalism as rooted to some extent in "romantic subnationalism," an ideal of American states as nations that he persuasively exposes as based on chauvinistic generalizations about groups of people, particularly by race or national origin (think "the Scots were a rugged, independent people"). He ranges over vast areas of American and European history, sometimes with almost unbearable lightness, but never arrogantly. And al: though he often waxes theoretical, he draws throughout on concrete, powerful examples of federal-state conflict: Jim Crow, the Sagebrush Rebellion, radioactive waste, medical marijuana, the right to die, the rights of gays and lesbians, the contest between state and federal law-enforcement power after September 11, and many more.

His views on what politicians call "States' rights" are hard to pin down, especially since today national power is mostly in the hands of conservatives who want to exercise it at the expense of the state autonomy they used to champion (consider Vermont, Hawaii, Massachusetts, and the federal Defense of Marriage Act). Gardner's aim in this book is not to stake out a political position, but rather to strengthen the intellectual foundations of constitutional adjudication in the states, which is a deeper and more ambitious project.

The heart of the book is its last chapter: an approach for lawyers and judges to use in construing state constitutions. First, Gardner says, search your state's constitutional history and context for evidence of the extent of authority granted to state courts to be "agents of federalism," able to act independently of the federal judiciary and the other branches of state government in order to check their power. Next, look for ways to discern in the state courts the discretion to use a state constitution to adjust state powers vis-a-vis the federal government--the kind of discretion that an outside auditor, though still an agent of the principal, might use in reviewing an agency's performance of its own limited mission. Gardner calls this the "dual agent model in practice." Finally, persuade the state court of its important role in resisting national abuses of the people's rights, or in assisting state legislative or executive resistance to those abuses.

Gardner shows us what denial of discretion to state courts looks like: state constitutional or legislative jurisdiction-stripping or other narrowing provisions, patterns of jury nullification, or evidence of popular mistrust of the state judiciary (as in the California Supreme Court's 1986 election upsets, said to have expressed voter dissatisfaction with justices' reversals of death sentences). The less such evidence a state has, the clearer the path should be to state judicial independence--not only to declare the set of rights in a state constitution to be different from those protected federally, but also to enforce "the same right" differently from the way federal courts have done. This is the way our system of "dual federalism," as Gardner sees it, should work.

In the end, as the reader can see from an entertaining hypothetical state supreme court opinion on an equal protection issue at the book's close, Gardner's suggested approach is not so different in effect from the New Judicial Federalism he has been critiquing for the past decade: State courts can reach different conclusions from federal courts about identical language in their respective constitutions. Gardner's achievement here is his careful, detailed reasoning from federalism principles to explain why state constitutions may validly be credited with their own meanings, regardless of the derivation of their language.

The book is a meaningful contribution not just to the reading of state constitutions, but also to reflection on constitutions in general, and to the unfolding relationships between and among bodies of organic law that keep our many-layered republic alive. The University of Chicago Press has made the book exceptionally appealing to the eye, with streamlined footnotes and a rich bibliography, and has given Gardner's important and original ideas a splendid home.

STEPHEN B. PERSHING is senior litigation counsel with the Center for Constitutional Litigation in Washington, D. C.