The Failed Discourse of State Constitutionalism

Authors

James A. Gardner, Western New England College School of Law

Abstract

In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state constitutions.

Second, I analyze the reasons for the failure of state courts to develop such a discourse. After rejecting several frequently offered explanations, I conclude that the failure of state constitutional discourse reflects a much deeper failure, a· failure of state constitutionalism itself. The central premise of state constitutionalism is that a state constitution reflects the fundamental values, and ultimately the character, of the people of the state that adopted it. This premise, however, cannot serve as the foundation for a workable state constitutional discourse because it is not a good description of actual state constitutions; it embraces theoretical inconsistencies that undermine its value as a framework for a coherent discourse; and it takes an obsolete and potentially dangerous view of the texture and focus of American national identity.

Recommended Citation

James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992).
Available at: https://repository.law.umich.edu/mlr/vol90/iss4/3