FUTURE LIBERAL LEGAL SCHOLARSHIP: SECOND AVENUE FOR RECONSTRUCTIVE THOUGHT

Doctrinal Scholarship: Focus on the Development of State Law

A second avenue for reconstructive thought to which liberal legal scholars may direct their attention is the independent development of state constitutional and common law. It should be remembered that decentralization was not an idea invented by the Reagan Administration. At least since 1970, the Burger Court was doing its share to move American law out of federal courtrooms. This trend was most apparent in the federal constitutional areas of standing, sovereign immunity, abstention, and habeas corpus. The Court took a similar posture with the governance of its certiorari policy, one decisively sympathetic to government claims.¹¹⁰ Likewise, the Burger and Rehnquist Courts, though not reactionary, have tried to put a halt to the criminal justice revolution championed by the Warren Court. And there are no signs that this trend will abate.

One of the benefits of judicial decentralization has been the revitalization of state law as an independent source of checking government abuses. As access to the federal courts was thwarted, and as the Court became less sympathetic toward certain rights claims, state high courts assumed a more prominent position as harbors for constitutional claimants. During the early period of the state constitutional law 'counter-revolution' (1970-1977), independent reliance on state law was largely confined to criminal justice cases. Toward the end of the 1970s, the emphasis on state law also became apparent in privacy cases and in equality of treatment cases involving issues such as school financing and gender discrimination. The momentum of the 'new judicial federalism' continued on into the 1980s with state high courts going beyond federal minimums in areas as diverse as abortion funding, access to courts and public fora, zoning, and various forms of economic liberty. By the close of 1987, state high courts had invoked their own constitutional law in some 450 cases in which the relief granted would have been unavailable under the federal Constitution as interpreted by the Supreme Court. ¹¹¹ Moreover, the 'new judicial federalism' of the late 1980s, unlike its predecessor, is no longer confined to a handful of Western and Atlantic Coast states.¹¹²

Justice William Brennan has referred to the state constitutional law movement as 'the most significant development in American constitutional jurisprudence today.'¹¹³ And as evidenced by the more than 300 law review articles generated on the subject between 1970 and 1986,¹¹⁴ this development has not gone unnoticed in academia. Unfortunately, most of the literature, like many of the state cases themselves, offers more in terms of approval and encouragement than of analytical insight and innovation. The states were spurred on to become the depositories of discarded federal rights doctrines as defended by dissenting Supreme Court justices. While not inherently suspect, this approach must be questioned for at least two reasons. First, it renders independent reliance on state law vulnerable to the criticism that its use is ad hoc and result-oriented, and thus unprincipled. This criticism has won, and is likely to continue to win, some approval not only in the academic literature, but also at the state polling booths. Second, reactive use of state law has typically been premised on arguments advanced within the analytical framework of current federal decisional law. More attention must be devoted to new conceptualizations in constitutional doctrine.¹¹⁵