Document Type

Article

Publication Date

2011

Keywords

constitutional interpretation, reverse incorporation, state courts

Abstract

Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to the federal and state systems. This short Article attempts to turn the focus around, by asking what state constitutional law can tell us about the federal constitution. The thesis explored here is that federal constitutional doctrine can and sometimes should do more to draw on state constitutional law, particularly when that law addresses—as it often does—analogous language or problems with which the federal courts have little experience. The Article calls this idea “reverse incorporation” for lack of a better phrase, but “federal constitutional borrowing of state constitutional law” would probably be more accurate, if a bit clunkier. In any event, the phrase is not meant to invoke the “reverse” incorporation associated with Bolling v. Sharpe,1 but to denote a wide range of “uses”: from looking to state doctrine as persuasive authority in federal cases to using it to define federal law. Elsewhere, I have described this thesis in depth, considered some of the arguments for and against it, and sketched out some tentative normative claims about when and how federal constitutional law should draw more from state constitutional law.2 This short piece presents an abbreviated version of the major arguments for and against such borrowing. It then goes on to address how reverse incorporation, like any interpretive tool, must be tailored to one’s preferred constitutional theory and to the particular constitutional issue presented. An originalist and a pragmatist will have very different uses for state constitutional law, for example, and will use it differently in Eighth Amendment cases than in Due Process cases. After identifying some of the concerns relevant to that kind of theory—and issue-tailoring, the Article concludes by addressing some general questions about the normative vision behind reverse incorporation.