Cornell W. Clayton, Toward a Theory of the Washington Constitution, 37 Gonz. L. Rev 41 (2002).[PDF] [Westlaw] [LexisNexis]
Perhaps the most important development in American constitutionalism in the past several decades is the emergence of a “new” judicial federalism. We have always lived in a system of dual constitutionalism. Chief Justice John Marshall recognized this fact in 1833 by declaring that the restrictions in the Bill of Rights applied only to the federal government and not to states. While state constitutions frame state governments and proclaim rights for their citizens, the Federal Constitution empowers a national government and creates rights applicable against that government. Although the Fourteenth Amendment altered the scope and application of the Bill of Rights, it did not lessen the importance of state constitutions in framing and restricting state governments. This dualism was one of the structural protections of liberty intended by the framers. To quote Madison:
In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.
Despite our long history of constitutional dualism, Americans remain largely ignorant about state constitutions and state constitutional law. Leading constitutional commentaries and texts focus almost exclusively on the federal constitution, and many Americans do not even realize that their state has a constitution. During the past two decades, however, state constitutionalism has taken on new significance as many state high courts have turned to their state charters to protect or expand individual rights and liberties not protected under federal law. . . Read More