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

Reason, March, 1997 by Brian Doherty

Along with being tougher on government intrusions on citizens' liberties, state courts have also extended some "rights" that are in fact obligations for others - insisting that their state governments are constitutionally required to be more generous with tax dollars. Despite a federal Supreme Court decision to the contrary, the states of Minnesota, California, Montana, and New Mexico have decided that it would be positively unconstitutional to limit public funding for abortions.

That state courts are making decisions relying on their own constitutions, their own text, their own history, and their own judgment is an encouraging sign that political power in the United States doesn't have to be calcified in a central leviathan. While federalism leaves room for the multiplication of error, the more states realize they don't have to obey the federal government, in judicial precedent or other areas, the more room to maneuver the American citizen has - the more room for social and legal experimentation and evolution.

Even James Gardner, one of the fiercest academic critics of the state courts' legal reasoning, recognizes the new state constitutionalism's potential value. "Despite their shoddy methods, I came to the conclusion that I don't think states need any other reason to depart from Supreme Court precedent than that they think the Supreme Court was wrong," Gardner says. "We don't have a state and federal government to provide different polities with different values and to constitutionalize them. It's to provide two different avenues of protection for rights that we as Americans have decided we have."

Brian Doherty (BMDoherty@aol.com) is assistant editor of REASON.