State Constitutional Rights Federalism, also known as “new judicial federalism” refers to the practice that developed in the 1970s of state courtsrelying on state bills of rights to provide broader protection for rights than was available under the federal Constitution.
Both the federal and state constitutions contain bills of rights restricting government. This double security is made effective through the federal and state judiciaries, each of which has the responsibility of enforcing constitutional rights. However, despite this system of dual guarantees and dual guarantors, for most of the nation’s history, state bills of rights and state courts played little role in the protection of rights. This changed in the 1970s as state courts began to rely on state bills of rights to provide additional protection against state violations of rights, a phenomenon known as the “new judicial federalism.” Federal constitutional law still remains the primary protection for rights in the United States and the primary source of constitutional doctrine. But state constitutional law today serves as a complement to—and occasionally as an antidote to—federal pronouncements.
The state constitutional rights federalism rests on three legal principles. First, in the present day, both federal and state bills of rights protect against the violation of rights by state governments. This was not always the case. When the federal Bill of Rights was adopted in 1791, its restrictions applied only against that government. The initial system for protection of rights was, thus, a system of parallel rather than dual protection, with state bills or declarations of rights protecting against state violations, and the federal Bill of Rights protecting against federal violations. Relying on the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court began early in the twentieth century, through a process known as selective incorporation, to gradually extend the protections of the federal Bill of Rights to prohibit state violations of rights. By the end of the 1960s, this process of selective incorporation was more or less complete, so that virtually all the guarantees of the Bill of Rights applied equally against state governments and the federal government. Thus, the actions of a state government could violate either the federal Constitution or the state constitution (or both), and the actions of a state government might be challenged in either federal or state court.
Second, in interpreting state and federal law, the United States Supreme Court serves as the ultimate interpreter of federal law, including the federal Constitution, but each state supreme court is the ultimate interpreter of its state’s law, including the constitution of that state. The U.S. Supreme Court can review the rulings of state supreme courts whenever federal law is involved. This helps ensure that state courts interpret the federal Constitution in line with authoritative Supreme Court precedent. State courts are not permitted to give either a broader or narrower interpretation of federal constitutional rights than that given by the U.S. Supreme Court. However, when a case involves no claim under the federal Constitution or when a state court ruling is based exclusively on state law, on what is referred to as “adequate and independent state grounds,” the decision of the state supreme court interpreting state law, including the state bill of rights, is final and not subject to review by the U.S. Supreme Court.
Third, federal law is supreme within its sphere, so when federal and state law conflict, federal law prevails. States and state courts therefore cannot recognize less in the way of rights for their residents than is required by federal law. Federal law creates a national minimum of rights, a least common denominator of rights protection. But states and state courts can provide more protection for rights than is required as a matter of federal law. Since the early 1970s, that is precisely what the states have done.
THE EMERGENCE OF THE STATE CONSTITUTIONAL RIGHTS FEDERALISM (AKA NEW JUDICIAL FEDERALISM)
From 1950 to 1969, in only ten cases did state judges rely on state guarantees of rights to afford greater protection than was available under the federal Constitution. However, from 1970 to 2020, they did so in more than 2,000 cases. This dramatic change raises an obvious question. If the governing legal principles have not changed over time, why has the role of state courts and of state bills of rights changed? Why did the state constitutional rights federalism arise when it did?
The emergence of the state constitutional rights federalism was closely linked to changes in personnel on the U.S. Supreme Court, best symbolized by President Richard Nixon’s appointment in 1969 of Warren Burger to succeed Earl Warren as chief justice. This and three other Nixon appointments alarmed liberal civil-liberties advocates, who feared that the reconstituted Supreme Court would erode the gains they had made during the Warren Court era, particularly with regard to the rights of defendants in criminal cases. In retrospect, it appears that these fears were exaggerated; the Burger Court did not launch a full-scale assault on Mapp v. Ohio (1961), Miranda v. Arizona (1966), or other landmark Warren Court rulings. Nor did the Supreme Court under subsequent chief justices. Nevertheless, what is crucial is that these fears led liberal civil-liberties groups to look for alternative means to safeguard rights, a search that eventually led them to embrace state bills of rights.
On initial inspection, this must have seemed an odd choice. State bills of rights protect many of the same fundamental rights—the freedoms of speech and of the press, religious liberty, and protections for defendants—that are found in the federal Bill of Rights, and historically state courts had not been aggressive in enforcing those guarantees. Nevertheless, several factors made state bills of rights attractive to rights advocates. First, state judges interpreting state bills of rights are not obliged to conform their interpretations to the rulings of federal courts interpreting analogous federal provisions. Even when the language is identical or nearly identical, state judges are interpreting a unique document with a unique history, and this uniqueness may justify a different interpretation. Moreover, even if the federal courts have interpreted an identical provision in a nearly identical case, the federal ruling is not binding because states are the ultimate interpreters of their own constitutions, and they may simply disagree. They need not assume that the federal interpretation is the best legal interpretation.
Second, even when the state guarantees are analogous to those found in the federal Bill of Rights—for example, state guarantees of freedom of speech and of religious liberty—they are often framed in distinctive language. In particular, they are often more specific than their federal counterparts. For example, in addition to prohibiting governmental establishment of religion, 19 states specifically bar religious tests for witnesses or jurors, and 35 prohibit expenditures for “any sectarian purpose.” These textual differences may provide the basis for interpretations diverging from those emanating from the U.S. Supreme Court.
Third, many state declarations of rights also contain protections that have no federal analogue. For example, 39 states guarantee access to a legal remedy to those who suffer injuries, 11 expressly protect a right to privacy, 26 expressly protect gender equality, and 49 expressly protect the right to vote. Thus, these constitutions offered the prospect of extending rights protections beyond those recognized by the Warren Court.
Fourth—and most important—under the doctrine of “adequate and independent state grounds,” rulings based solely on state law are not subject to federal review, as articulated in Michigan v, Long (1983). This means that expansive state rulings, if based on states’ rights guarantees, are insulated from reversal by the Supreme Court. Thus, the shift to state bills of rights initially represented a tactical maneuver by groups eager to evade what they perceived as a less hospitable federal constitutional law.
When litigants in the 1970s first advanced state constitutional claims, the supreme courts in California, New Jersey, New York, and a few other states immediately responded to their arguments. Their willingness to adopt a far more rights-protective posture than state courts had in the past reflected the influence of the Supreme Court under Chief Justice Warren. The Warren Court provided a model as to how a court could approach the interpretation of rights guarantees, and in the 1970s some state supreme courts seized on that example in giving broad readings to their state guarantees of rights. Thus, although the activism of the Warren Court was often portrayed as detrimental to federalism, this activism was a necessary condition for state supreme courts becoming actively involved in protecting civil liberties. It turns out that the protection of civil liberties is not a zero-sum game, in which increased activity by one set of courts necessitates decreased activity by the other. Rather, the relationship between the federal and state judiciaries involves a sharing of responsibility and a process of mutual learning, such that a change in orientation by one set of courts tends over time to be reflected in the other set of courts as well.
THE AGENDA OF THE STATE CONSTITUTIONAL RIGHTS FEDERALISM
The state constitutional rights federalism originated in reaction to the rulings—or anticipated rulings—of the Burger Court, particularly in the criminal justice area. Thus, during the 1970s most rulings under the state constitutional rights federalism involved the rights of defendants. Other early state constitutional rights federalism rulings involved the reform of public school finance, which itself became a state constitutional issue after the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez (1973) foreclosed consideration of the issue under the federal Constitution. Finally, the issue of free speech rights on private property, such as shopping malls, emerged as an important issue under state constitutions, after the U.S. Supreme Court ruled that the First Amendment did not protect such speech. What these examples illustrate is that the state constitutional rights federalism began as a fallback position, a second-best approach, when the preferred approach of federal constitutional protection was unavailable, and the state constitutional agenda was largely determined, ironically enough, by what some state jurists regarded as adverse decisions of the U.S. Supreme Court.
This reactive reliance on state constitutions in response to U.S. Supreme Court rulings has continued, sometimes at the invitation of that court. Thus, in Rucho v. Common Cause (2019), the U.S. Supreme Court held that the federal Constitution did not provide a basis for invalidating partisan gerrymandering but noted that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” In 2018 the Pennsylvania Supreme Court had already struck down a partisan gerrymander of the state legislature as in violation of the state constitution’s “free and equal elections” clause, and in 2019 the North Carolina Supreme Court held that extreme partisan gerrymandering violated the state constitution’s “free elections” clause. Litigants in other states are likely to mount state constitutional challenges to gerrymandering in their states as well.
Other important state constitutional issues have arisen that do not reflect disappointment about the judicial decisions emanating from the nation’s capital. One such issue involved the right of gay and lesbian couples to marry. Even before the U.S. Supreme Court addressed the issue, state courts were doing so, relying on state constitutions. In 1993 the Hawaii Supreme Court ruled that denying marriage licenses to gay and lesbian couples violated the state constitution. Five years later, an Alaska court concluded that marriage was a fundamental right and that barring same-sex marriages amounted to sex discrimination in violation of the Alaska Constitution. In 1999 the Vermont Supreme Court ruled that the state constitution guaranteed gay and lesbian couples the same legal rights and benefits of marriage enjoyed by heterosexual couples. In 2004 the Massachusetts Supreme Judicial Court held that the Massachusetts Constitution prohibited limiting marriage to opposite-sex couples, in 2008 the California Supreme Court likewise struck down a ban on same-sex marriage, and in 2009 the Iowa Supreme Court did the same. These rulings prompted a fierce reaction, as 31 states adopted state constitutional amendments banning same-sex marriage. The U.S. Supreme Court ultimately resolved the issue, ruling in Obergefell v. Hodges (2015) that the U.S. Constitution protected the right of same-sex couples to marry nationwide.
Another emerging area in state constitutional law, one in which the U.S. Supreme Court has played no role, involves the intersection of constitutional law and tort law. Business interests, insurance companies, and the medical profession have long complained that tort law–related legal doctrines unduly favor plaintiffs, and that juries in tort cases, especially when those cases pit ordinary citizens against large corporations, tend to award compensatory and punitive damages that are arbitrary and excessive. Whatever the validity of those charges, they have received a sympathetic hearing from many state legislators, who have enacted various “tort reform” statutes designed to shift the balance of power away from plaintiffs and toward defendants. These statutes have been challenged by members of the plaintiffs’ bar, who claim that they violate various state constitutional guarantees, including the right to a jury trial and the right to a redress of grievances. In several states—including Illinois, Ohio, and Oregon—these constitutional challenges have succeeded. However, the issue is far from settled, as new reform statutes are likely to spawn new litigation in state after state, making tort reform the most salient state constitutional issue of the first decade of the twenty-first century.
The states’ experience with regard to same-sex marriages and tort reform highlights a key feature of the state constitutional rights federalism. It is intimately bound up with the political process in the states. The federal Constitution is difficult to amend, and on only five occasions has it been altered to overturn rulings of the U.S. Supreme Court. In contrast, most state constitutions are relatively easy to amend, and voters are not reluctant to change their constitutions, even their state declarations of rights, in order to overrule judicial decisions with which they disagree. As noted, 31 states adopted amendments limiting marriage to heterosexual couples. Massachusetts and California had earlier adopted constitutional amendments overturning state constitutional rulings invalidating the death penalty, and California and Florida also adopted amendments to counter expansive interpretations of the rights of defendants under state constitutions. Controversial state constitutional rulings may thus start, rather than conclude, constitutional debates, and the participants in those debates are likely to include legislators, interest groups, and ordinary citizens, as well as judges.
From a theoretical perspective, under the American system of rights protection, the federal government provides the base, the constitutional minimum, ensuring the protection of fundamental rights, while state protections build upon that base, providing whatever additional protections the citizens of the state deem appropriate. From an institutional perspective, the logic is slightly different. The initial responsibility for protecting rights often rests with the states, both their political branches and their courts. Federal intervention usually occurs as a result of litigation, when the states have, in the view of the U.S. Supreme Court, failed to meet their responsibilities. This offers substantial opportunity for state courts to develop civil liberties law under their state constitutions, and thus the reliance on state bills of rights pioneered in the state constitutional rights federalism is likely to be a permanent feature of American federalism.
SEE ALSO: Bill of Rights; Brennan, William; Burger, Warren; Fourteenth Amendment; Incorporation (Nationalization) of the Bill of Rights; Michigan v. Long; State Constitutional Law; State Constitutions
Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses, 4th ed. (Charlottesville, VA: Michie, 2009); Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (New York: Oxford University Press, 20180; G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998); Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press, 2009); and Robert F. Williams and Lawrence Friedman, State Constitutional Law: Cases and Materials, 5th ed. (Newark, NJ: LexisNexis, 2015).