The U.S. and the State Constitutions: An Unnoticed Dialogue
Americans are quite used to the fact that we almost all live in jurisdictions where there are two constitutions that apply to us: the U.S. Constitution and the Constitution of the states wherein we reside. But, Americans typically know very little about state constitutional law in the states in which they live—even when they practice as lawyers in a given state. The first year law school curriculum often features mandatory courses on state tort law, state contract law, state property law, and state criminal law. No first year courses, however, are offered in state constitutional law, and at many law schools the course is not even offered as an upper level elective.
This fact has obscured a very interesting dialogue that has gone on for many years now in U.S. and state constitutional law. State constitutional law is filled with many clauses and doctrines that complete U.S. constitutional law in toto by very explicitly protecting unenumerated individual liberty rights; by guaranteeing state residents the right to a free and appropriate public school education; and by guaranteeing widely the core U.S. constitutional principle of the separation of powers.U.S. constitutional law has, in turn, been a model to which the states have frequently turned in adding rights that were already protected at the federal level to state constitutions. Former Supreme Court Justice William J. Brennan once famously argued that the States should protect individual liberties more vigorously than the federal Supreme Court, which sets only a floor below which rights protection cannot fall. Many observers of the federal Supreme Court believe that it sets—and that it should set—a “federalism discount” for a nation that is the third most populous in the world and the fourth largest territorially. The European Court of Human rights similarly applies a “margin of appreciation” by which it tolerates some variations in rights protection so long as no nation falls through the federal floor.
