We are about to observe the fortieth anniversary of the publication of a seminal law review article: State Constitutions and the Protection of Individual Rights by Associate Justice William J. Brennan. This Article was also the basis of a talk Justice Brennan later gave at The New York University Law School. It is often said that this article, one of the most-cited in American legal scholarship, sparked the “new judicial federalism.”
In 1986, I wrote in a tribute to Justice Brennan: “This one law review article, almost by itself, created the renaissance of state constitutionalism.” I have not really changed my view since then. Yet, what has been the impact of Justice Brennan’s article in practice? Have the state courts simply paid lip service to “individual rights” in state constitutions, giving them a modicum of respect while quietly continuing to give supremacy to the rights in the U.S. Constitution? Have the state courts created a robust jurisprudence that advances the powers of the states in the federal system? In this Article, I shall attempt to answer those questions.
This Article proceeds by answering those questions through four related issues. Part II explores the effect of the Michigan v. Long doctrine over the past thirty-plus years since the originating decision. Part III examines the three different approaches taken by state supreme courts in interpreting state constitutions alongside their federal counterpart: lockstepping, limited lockstepping, and independent jurisprudence. Part IV looks at approaches to interpretation where a provision in a state constitution has no analogue in the federal document. Part V asks whether there should be national uniformity in individual rights and, if not, when states should be permitted to deviate from that norm. Through this analysis, the Article evaluates the real-world impact of Brennan’s seminal article.