« Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green
| Main | Problems With Vermeule, Part 8: Vermeule’s Neglect of Intermediate Positions
Chris Green »

03/31/2022

Justice Clint Bolick: Principles of State Constitutional Interpretation
Michael Ramsey

Recently published, in the Federalist Society Review, Justice Clint Bolick (Arizona Supreme Court): Principles of State Constitutional Interpretation.  From the introduction (footnotes omitted):

State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to provide greater protections for individual rights than the federal constitution. When they do so, their decisions are not subject to review by federal courts absent a federal issue.

The subject has received significant judicial and academic attention ever since U.S. Supreme Court Justice William J. Brennan, Jr., in a pair of trailblazing law review articles in 1970 and 1984, urged state courts to independently interpret their constitutions to elevate the protection of individual rights. Indeed, in the years leading up to his second article, Brennan counted over 250 state court decisions “holding that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law.”[4] On issues encompassing free speech, religious liberty, private property rights, due process, privacy, capital punishment, education, victims’ rights, and the rights of criminal defendants, state courts have frequently identified greater constitutional protections than their federal counterparts.

And yet the methodology of state constitutional interpretation remains largely unexamined. Rarely have state courts specified when they will interpret their state constitutions independently and how they will go about that task. As a result, the jurisprudence is inconsistent and confusing, and constitutional rights may not be protected to the extent the framers of our state constitutions intended. State court judges typically, and often correctly, blame practitioners for failing to raise and develop state constitutional arguments adequately. But if our jurisprudence lacks coherent methodology to determine whether and how to independently interpret our state constitutions, how can practitioners know when to raise such arguments and how to present them effectively?

Arizona jurisprudence is especially bereft of such coherent methodology. Sometimes we decide cases on independent state grounds, holding that certain state constitutional provisions provide greater protections than the federal constitution. In other cases, we interpret state constitutional provisions in lockstep with federal jurisprudence construing federal constitutional provisions, even where the language is starkly different.In one recent decision in which only state constitutional and statutory claims were raised, the majority nonetheless decided the case on the basis of federal precedents, reasoning that if the local ordinance at issue violated narrower federal constitutional constraints, it would necessarily also offend more protective state constitutional protection. What we have never done is to explain when or why we will take one approach or another, resulting in an entirely subjective, ad hoc approach that must be mystifying to the advocates who appear before us.

In this Article, I explain why it is important for state judges to vigorously enforce their constitutions and propose several principles of state constitutional interpretation that may help alleviate the current jurisprudential cacophony...