Primacy in Theory and Application: Lessons From a Half-Century of New Judicial Federalism

In his 1977 article, State Constitutions and the Protection of Individual Rights, Justice Brennan famously reminded jurists that our governmental system includes two constitutions applicable to each state, and New Judicial Federalism was born. Since then, state courts have applied their own Bills of Rights using different approaches with varying degrees of enthusiasm. The primacy approach, requiring state courts to consider the state constitution first, and turning to the federal constitution only if needed to resolve the case, is theoretically optimal but inconsistently followed, even in the few jurisdictions professing to adopt that approach. This Article posits that the reason the primacy approach has gained little traction is because it is the hardest approach to follow, at least in the beginning.

In response, this Article proposes a non-exhaustive checklist for review of claims under state constitutions. This checklist, if repeatedly and consistently applied, provides judges and lawyers at least a partial solution to the practical difficulties that have hamstrung the development of state constructional law for the last half-century.