The Failed Discourse of State Constitutionalism
In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state constitutions.
Second, I analyze the reasons for the failure of state courts to develop such a discourse. After rejecting several frequently offered explanations, I conclude that the failure of state constitutional discourse reflects a much deeper failure, a· failure of state constitutionalism itself. The central premise of state constitutionalism is that a state constitution reflects the fundamental values, and ultimately the character, of the people of the state that adopted it. This premise, however, cannot serve as the foundation for a workable state constitutional discourse because it is not a good description of actual state constitutions; it embraces theoretical inconsistencies that undermine its value as a framework for a coherent discourse; and it takes an obsolete and potentially dangerous view of the texture and focus of American national identity.