A Failed Critique of State Constitutionalism
James A. Gardner begins The Failed Discourse of State Constitutionalism with a story describing “the experience of a great many lawyers in this country.” The protagonist is an attorney whose client has an unlawful discrimination claim that for some reason cannot succeed under the U.S. Supreme Court’s current equal protection jurisprudence. The attorney decides to present an argument based on her state constitution’s equality guarantee, only to discover that the universe of material from which a plausible argument, not to mention a rich discourse, might emerge – existing case law and scholarship, “useful tidbits” of constitutional history and philosophy from the state’s jurists – is either thin, incoherent, derivative, or nonexistent. The moral of Professor Gardner’s story is that state constitutional discourse is impoverished.
l propose a different story. The time is the present. The place is Oregon. My protagonist, like Gardner’s, has a client claiming unlawful discrimination. Heeding both the judicial and extrajudicial advice of the state’s supreme court justices, she turns to the state constitution before even contemplating a challenge under the Equal Protection Clause. What she finds is a well-developed, carefully reasoned line of cases that does not significantly refer to federal law. These cases develop an entirely different method of analysis – one that does not include, for example, levels of scrutiny, fundamental rights, or suspect classes. Further, the Oregon analysis is based on the particular language of the Oregon Constitution as well as its historical, political, and cultural context. It is sensitive to the general philosophy of Oregon constitutional jurisprudence as developed by the state’s appellate courts over recent decades. To refine her understanding of the case law, the Oregon attorney can also refer to a variety of scholarly articles devoted to the state equality guarantee. In short, her research will quickly lead her to a richly textured, locally rooted state constitutional discourse, the lexicon of which she can then employ in fashioning her own contribution.