Vol. 15 No.10 (October 2005), pp.900-902

INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM, by James A. Gardner. Chicago: University of Chicago Press. 2005. 312pp. Cloth $45.00.  ISBN: 0-226-28337-2.

Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: Puro [at] slu.edu.

Law and Legal Studies analysts frequently consider relationships between state and national constitutional systems. James A. Gardner, professor at the State University of New York at Buffalo Law School, combines theoretical and pragmatic orientations toward federalism principles embedded in the U.S. Constitution. He emphasizes complex and uncertain relationships between national courts’ and state courts’ interpretations of state (subnational) constitutional provisions. Gardner addresses these concerns through a “functional” interpretation of the role of states and state appellate courts. The central issues in INTERPRETING STATE CONSTITUTIONS are state constitutional authority within the United States federal scheme, and whether state constitutions can provide broader construction of individual liberties than the federal constitution. The book is intended for judicial and legal professionals, including political scientists, lawyers, state and national judges and other state public officials.

Judicial scholars generally focus upon United States Supreme Court constitutional discourse to examine civil liberties and economic parameters. State constitutional interpretation is often highlighted when state courts make civil liberties decisions substantially expanding or narrowing federal authority. Gardner sees an increasing role for state appellate courts to interpret state constitutional provisions. He assumes that federalism is a series of complex relationships that anticipates that state courts’ power and capacity can be deployed to resist abusive exercise of federal authority. Central to this analysis are interpretational conventions existing for a state constitutional document within U.S. federal legal system; and the political and legal inferences required to allow state power to restrict national authority. Gardner modifies several of his previously published book chapters and law review articles to raise and respond to these questions.

Gardner’s analysis provides substantial background in legal history and legal thought underlying state constitutional provisions. The U.S. Constitutional framers gave national and state courts different authority and responsibilities in the federal structure. In many subject areas intrepretive principles governing state appellate courts are distinct from those generally considered by federal appellate courts.  In the U.S. system of federalism, federal courts’ application of national constitutional law to national government authority has a distinct legal status from state courts using state constitutions to resist national power. Gardner utilizes state litigation issues from a wide variety of states, ranging from capital punishment to libel suits, to [*901] demonstrate the diversity of state interpretational practices. Sufficient examples of state and federal courts’ overlapping authority are presented to permit readers to contemplate a variety of scenarios.

Gardner argues for a new and different language to suggest that U.S. state courts can have greater direct involvement in interpreting state and federal constitutional provisions. This direct involvement emphasizes interdependent relationships between state and national courts. His analysis sharply contrasts with scholars’ and judges’ support for New Judicial Federalism. New Judicial Federalism begins with state court interpretational conventions and connects that judicial analysis to state power. Further, according to these ideas, state and national courts interpret their respective constitutions as each representing “an independent, free-standing body of positive constitutional law” (p.x). Gardner reverses this analysis by beginning with state functions in a federal system; and, within the structure of the federal system, he finds broad authority for state court constitutional interpretations. He rejects New Judicial Federalism’s independent, free-standing idea and rather focuses upon complex independent and interdependent relationships between state and national courts. Underlying Gardner’s main assumption is the idea that state constitutions differ in substantial ways from the national Constitution and should be thought of “as a somewhat different species of constitution than their federal cousin” (p.17).

State Courts As “Agents Of Federalism”

Gardner analyzes the structural role of state courts in the federal system to check abuses of national power, especially national judicial power. Gardner argues that a state court could use interpretational mechanisms in its own state constitution to act as an agent of federalism under appropriate circumstances to counteract “unduly restrictive national protection for individual liberty” (p.193). He utilizes key assumptions about a proper functioning system of federalism and how state authority maintains liberty within the federal political and legal system. This analysis revises state judicial functions in the federal system and indicates that these courts should examine and independently evaluate federal judicial rulings construing the U.S. Constitution. Gardner’s functional analysis argues that state court interpretative powers vis à vis their state constitutions can increase state judicial power to provide more protection for individual rights than does the national Constitution. He speculates that state court exercise of this authority will also allow state executives and legislatures to deflect national authority.

State courts vary widely in their authority, and state constitutions differ in extending power to their judicial branch to serve as protectors of liberties and to compete with state executives and legislatures. Gardner develops interesting ideas concerning citizens’ trust of state courts. State judiciaries with limited authorization from the state constitution will have difficulty being an “agent” of federalism. Further, some state courts may have limited ability to engage in struggles between state and national authority when confronting conflict between state and national [*902] constitutions. Judicial scholars should undertake additional analysis concerning how judicial power is allocated at the state level.

State court ability to develop new interpretative mechanisms will require them to consider decisions affecting liberty beyond their own state’s boundaries. Gardner’s functional analysis should provide alternatives derived from their interpretative power. State courts could provide less protection for individual rights and redefine parameters of national law—e.g., in church-state activities or individual privacy matters. For example, state courts may be faced with interpreting new 2005 abortion-related state laws. The broadest of such legislative mandates are South Dakota’s ban on abortion in all instances if ROE v. WADE (1973) is overturned, and legislation in five states (Maryland, West Virginia, Florida, Oklahoma, and Arizona) that establishes a fetus as an independent victim in homicide cases. Narrower legislation provides that women receive state-written information before an abortion (Georgia, Oklahoma, South Dakota) and affording women an opportunity to view an ultrasound before obtaining an abortion (Indiana).

In the concluding chapter, Gardner provides a preliminary functional analysis to be applied in practice. He uses a dual-agent model of state constitutionalism where states are recognized as general agents that may be constrained by both the national government and by conflicting national and state constitutional requirements. This model challenges many dominant perspectives, mainly by viewing state constitutionalism as existing within adjustable grants of authority. Gardner’s model would be improved with additional directions concerning how dynamics of the federal system will allow both national and state courts to achieve collectively held goals.

Gardner’s clearly argued analysis places states and state constitutions in a significantly more important role than that considered by most legal and judicial scholars. His analytically sound prescriptions to state judges and state courts provide avenues and responsibilities for their defining civil liberties in the national environment. Gardner’s thought-provoking analysis requires reconsideration of U.S. federalism as applied to relationships between state and national courts. I concur that there is no single clear interpretational path for state courts’ analysis of their respective constitutions. Future research should examine instances in which state courts have taken initial steps towards the suggested interpretational approach. 

CASE REFERENCE:

ROE v. WADE, 410 US 113 (1973).

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© Copyright 2005 by the author, Steven Puro.