Goodwin Liu: In Praise of Judicial Federalism

This year marks the 40th anniversary of one of the most cited law review articles of all time: “State Constitutions and the Protection of Individual Rights” by Justice William Brennan, published in the Harvard Law Review. Brennan, who served five years on the New Jersey Supreme Court before joining the U.S. Supreme Court, urged state courts to engage in independent and expansive interpretation of the individual rights guarantees in state constitutions, especially in areas where the U.S. Supreme Court had (in his view) unduly constricted the scope of analogous rights in the federal Constitution. This thesis remains relevant and contested today.

There is no dispute that in our federal system, state high courts have the final word on state law, just as the U.S. Supreme Court has the final word on federal law, and that federal constitutional law sets a floor that state courts must respect. There is also no dispute that state courts have authority to interpret individual rights provisions in state constitutions more expansively than U.S. Supreme Court interpretations of analogous provisions in the federal Constitution. But under what circumstances should state courts do so?