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The question of constitutional theory in state courts often results in a comparative analysis of the state and federal constitutions. Typically where a comparative analysis is used, the purpose is to support the authority of the state court to interpret the state document independently and to justify an interpretation and result that diverge from federal precedent. While this approach may add to the persuasiveness of the opinion, it does little to advance the role of state courts in the dialogue of constitutionalism. The critical tension in state constitutionalism is between the need to persuade critics that the state court is justified when it diverges from federal precedent, and the goal of having a voice in constitutional discourse and debate. In seeking to persuade critics, state courts tend to rely extensively on differences between the federal and the state constitutions. However, it is precisely this "discourse of distinctness"' which other critics claim results in isolationism of the state and irrelevance in constitutionalism generally.

This paper first discusses the significance of state constitutional law, which is important background and support for the rest of the paper. Second, the paper traces some of the history of state constitutional interpretation, centering on the question of when a state court should engage in independent analysis, and discussing some examples of courts stating expressly which method it will follow, and others illustrating a troubled history of attempting to answer this question. Next, the focus shifts to address the question of how independent interpretation has been carried out, and some of the problems involved and the pressures faced by state courts. In addition, this paper makes suggestions as to how to better enrich and enhance the process of independent interpretation by state courts in a way which furthers the development of constitutional jurisprudence of the state court and contributes to constitutionalism in general.


Posted with permission.