State Constitutionalism and the Scope of Judicial Review

This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state constitutions perform different functions from the U.S. Constitution-functions dictated by their role within a federal system of governance. In this system, governance at the state level is meant to be more active, more comprehensive, and more efficacious than its national counterpart. Because the foundational project, indeed the very telos of state and national constitutionalism differs, it makes no sense unreflectively to apply to state constitutions approaches to judicial review worked out in the institutional setting of the U.S. Constitution. The chapter sketches the outlines of an appropriately context-sensitive account of judicial review under state constitutions. Such an approach must, take account of the contemporary mission of states as agents of active governance; judicial review, in other words, must be "optimized" to serve its actual institutional purposes. Such review should be neither too deferential, thereby leaving broad state power dangerously unchecked, nor too aggressive, thereby unduly restraining state power that is meant to be both broad and effective. The challenge is to develop an optimizing account of state constitutional judicial review that facilitates effective governance while simultaneously providing appropriate protections for individual liberty.