We the 50 peoples: state constitutionalism challenges the federal judicial leviathan

Reason, March, 1997 by Brian Doherty

Thomas B. Stoddard of the Lambda Legal Defense Fund, a gay rights legal activist group, told National Journal in 1991, "If I had my druthers, I would rather go to the Supreme Court and liberate every single state in the union." But the federal Supreme Court's Bowers v. Hardwick decision in 1986 upheld a Georgia sodomy law - and by implication any other state's sodomy law.

So Lambda is now pursuing cases against sodomy laws in state courts on state constitutional grounds, with some successes. "State courts recognize that their state constitutions provide greater security for individual rights than does the federal Constitution in many cases - specifically when it comes to privacy and equal protection," says Lambda staff attorney Suzanne Goldberg. "So we've chosen the states as a deliberate strategy."

The federal Supreme Court's rights juggernaut slowed down in the late '70s and early '80s. With the Rehnquist Court in full swing, liberal former Supreme Court Justice William Brennan declared a renaissance in state constitutionalism in a speech in November 1986. By 1991, legal scholar Ronald L. K. Collins had counted 750 decisions where state supreme courts, relying on their own state constitutions, extended citizens' rights beyond federal Supreme Court precedent.

Jennifer Freisen, a professor at Loyola Law School in Los Angeles and author of The State Constitutional Law: Litigating Individual Rights, Claims and Defenses, says state constitutionalism "is still re-surging. It's so heavy I can hardly keep up with it." Freisen has compiled more than 1,200 pages of decisions where state courts have consulted their own constitutions to reach conclusions about citizens' rights different from the federal Supreme Court's decisions under similar circumstances.

State constitutions still don't enjoy much respect. James A. Gardner of the Western New England School of Law argued in a 1992 Michigan Law Review article that we shouldn't even consider state constitutions "constitutions" in the same sense as the federal one.

Unlike the federal document, state constitutions aren't streamlined, long-lasting edifices. America has had 146 different state constitutions; 31 states have had two or more constitutions, and 18 have had four or more. And as of 1985, America's state constitutions had been amended more than 5,000 times.

The average state constitution is four times as long as the federal one, and some are eight times as long. And they are often larded with material that seems more the stuff of statute - or humor - than of the sacred compact binding a people into political unity. Louisiana amended its constitution to make Huey Long's birthday a state holiday. Texas's constitution declares that banks may use automated teller machines. The width of ski trails in state parks is a constitutional matter in New York.

State court judges themselves don't treat their constitutions with much respect, Gardner found. He argues that "contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements." Gardner sampled 1,208 state supreme court decisions from 1990 and found that in only 21 percent of the cases did the court even attempt to address state constitutional issues.