State Constitutional Law, New Judicial Federalism, and the Rehnquist Court

Today, I believe, we find ourselves at an interesting crossroads. Over the past few decades, under the banner of new judicial federalism, many state courts have asserted a role for state constitutions in the protection of individual liberties and the resolution of legal disputes. This outburst of state constitutional fervor, however, has been met with great criticism from different camps, all believing that the uniformity provided by our federal constitution as interpreted by the U.S. Supreme Court should guide state court decisions and especially state constitutional interpretation. At the same time, the very ability of state courts to decide state constitutional questions is being threatened.

The Rehnquist Court has carved out for itself a greater ability to review the decisions of state courts, even on matters of state law. I will set the stage for tomorrow's program by discussing the ebb and flow of the importance and development of state constitutions through this country's history. I will then paint a picture of the present and what I see as new interesting times for state constitutional law. The past thirty years have seen the reemergence of state constitutional law, but this reemergence may be facing an increasingly hostile environment.