43 See Malcolm E. Jewell, Representation in State Legislatures (Lexington: University of Kentucky Press, 1982). 44 See Larry Sabato, Goodbye to Good-Time Charlie: The American Governorship Transformed (Washington, DC: CQ Press, 1983).

45 See Mavis Mann Reeves, "Look Again at State Capacity," in Robert J. Digler, ed., American Intergovernmental Relations Today (Englewood Cliffs, New Jersey: Prentice-Hall, 1986), pp. 143-159, esp. 153-154.

46 See Larry Berkson and Susan Carlton, Court Unification: History, Politics and Implementation (Washington, DC: Government Printing Office, 1978).

47 See Charles Press and Kenneth VerBurg, State and Community Governments in the Federal System (New York: John Wiley and Sons, 1983), pp. 455-494.

48 "Eternally Vigilant" is the motto of the American Civil Liberties Union.

49 See New York Times v. Jascalevich, 439 U.S. 1301 (1978). 50 See Widman v. Vincent, 454 U.S. 263 (1981).

51 The classic discussion is still Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890). See also the discussion in William Cohen and John Kaplan, Constitutional Law: Civil Liberty and Individual Rights (Mineola, New York: The Foundation Press, 1982), pp.

181-193.

52 See Thomas Y. Davies, "A Hard Look at What We Know (and Still Need to Learn) about the 'Costs' of the Exclusionary Rule," American Bar Foundation Research Journal (1983): 611-690.

53 See Ellis Katz, "Prisoners' Rights, States' Rights." 54 See City of Los Angeles v. Manhart, 435 U.S. 202 (1978), for example.

55 Miller v. California, 413 U.S. 15 (1973), although the U.S. Supreme Court seems to have retreated from this position.

56 See, for example, Stone v. Powell, 428 U.S. 465 (1976). 57 See Michigan v. Long, 463 U.S. 1032 (1983).

58 In fact, there is some evidence that state supreme courts may be just as vigilant about protecting individual liberties as is the U.S. Supreme Court. See Craig R. Ducat, Mikel L. Wyckoff and Victor E. Flango, "Can State Judges Be Trusted to Defend Federal Constitutional Rights?" Paper delivered at the 1988 Annual Meeting of the American Political Science Association, Washington, DC.

59 For a fascinating typology of state constitutional traditions, see Daniel J. Elazar, “Principles and Traditions

Underlying State Constitutions," Publius: The Journal of Federalism 12 (Winter 1982): 11-26.

60 Albert L. Sturm, "The Development of American State Constitutions." But Sturm does not include the Connecticut and Rhode Island charters as constitutions, and his survey was completed before the adoption of the Georgia Constitution of 1982. Therefore, the correct number might be 148 rather than 145. See also the information regularly provided by the Council of State Governments in its annual Book of the States.

61 Book of the States, 1988-89 (Lexington, KY: Council of State Governments, 1988), p. 18.

62 See, for example, John J. Harrigan, Politics and Policy in States and Communities (Boston: Little Brown and Company, 1984), esp. pp. 19-34.

63

3 See G. Alan Tarr, “Religion under State Constitutions," Annals of the American Academy of Political and Social Science 496 (March 1988): 65-75.

64 For example. Article I, Section 5 of the Michigan Constitution provides: "Every person may freely speak, write, express, and publish his views on all subjects, being responsible for the abuse of that right. . . ."

65 For example, the Pennsylvania Constitution provides: "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." (Article III, Section 14); "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment...." (Article I, Section 27); and "Equality of rights under the law shall not be denied or abridged in the Commonwealth because of the sex of the individual." (Article I, Section 28).

66 Constitution of the United States, Article VI, Section 2. 67 Constitution of Pennsylvania, Article VI, Section 3. 68 Constitution of the United States, Article VI, Section 2. 69 Unfortunately, this is an area that is not studied adequately. But see David B. Rabban, "The First Amendment in its Forgotten Years," Yale Law Journal 90 (January 1981): 514-595, and Edward S. Corwin, Liberty against Government (Baton Rouge: Louisiana State University Press, 1948).

70 In fact, the process may have worked just the other way, with federal judges borrowing the concept of substantive due process from state constitutional developments. It may be that the concept was first articulated in New York in Wynehamer v. People, 13 N.Y. 378 (1856). See Corwin, Liberty against Government. . . .

Chapter 2

In 1971, Justice Hugo Black wrote of "Our Federalism" as "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." In 1971, however, it was not yet clear that the U.S. Supreme Court had consecrated a new era of greater, though still bounded, federal constitutional support for state regulatory powers. During the past one-and-one-half decades, the U.S. Supreme Court has recast the nation's image of the U.S. Constitution and has redefined its own authority to interpret the Constitution. These developments should have special meaning for state governments. From the federal judiciary's recognition of constitutionally expansive federal administrative authority in 19372 to the late 1970s, the federal constitutional landscape was not as hospitable to state exercises of broad police and economic regulatory powers as it is today with the Supreme Court's new solicitude for "Our Federalism."

"Our Federalism" has operated on several fronts in federal constitutional doctrine. The Burger Court substantially tempered the activist role that the Warren Court had asserted in expanding individual rights guarantees. In turn, the Rehnquist Court has marginalized the force and reversed the momentum of Warren Court precedents in many areas,3 including criminal procedure,4 constitutional privacy,5 and Fourteenth Amendment state action and equal protection doctrines. At the same time, the Court has acknowledged the potential for independent state protection of individual liberties under state constitutional, statutory, and common law. Additionally, al

though a narrow majority of the Burger Court refused to continue to enforce substantive restraints on Congress' commerce powers in the interests of state governments, the Court may be willing to scrutinize the congressional procedures for enacting commerce legislation that directly burdens the states. 10 Moreover, the Supreme Court has limited the access of individual rights plaintiffs to the federal courts, in part by strengthening the procedural barriers of standing11 and by broadening constitutional preferences for state court powers in the doctrines of adequate and independent state law grounds, state sovereign immunity, abstention, and equitable restraint.12

The Supreme Court's heightened sensitivity to "Our Federalism" yields much ground for activism to states in the development of their own constitutional law. To some extent, state courts have responded to the clarion call for leadership in the field of individual rights protection. 13 Yet, vast territories of state constitutional law remain to be explored by state legislatures, in their economic and civil liberties policymaking, and by state courts, in their interpretation of the mandates of their own constitutions. 14 Particular opportunities-and the nature and scope of state authority to exploit them-will be examined in the following chapters of this book.

This chapter serves merely to sound a warning. In the stir of a much warranted enthusiasm for state constitutional law development, it must be remembered that "Our Federalism" embodies restraints on state authority as well as powers. Inherent in cooperative federalism is an expectation that the federal Constitution will furnish a "floor of security" for the interests of life, liberty, and property below which the states cannot fall in ordering their policy priorities through state law, including state constitutional law.

Generous as the U.S. Supreme Court has been of late in sanctioning the independent evolution of state constitutional law, its recent construction of several federal constitutional doctrines has not been wholly congruent with this attitude. Sound leadership of the state constitutional law movement depends on careful study of the ambiguities in these federal doctrines, which may limit all branches of state government in their lawmaking authority, or affect only the state judiciary in its authority to declare state constitutional law.

Brief analyses of the most relevant of these doctrines follow.15 The first section examines the contours of major federal constitutional doctrines that channel the economic and police powers of state legislatures, executives, administrative agencies, and courts. In order of treatment, they include the preemption doctrine, the dormant commerce clause doctrine, and the takings clause, and economic due process and equal protection doctrines. The second section describes federal constitutional boundaries on the authority of state courts to interpret state law, including state constitutional law. They involve the adequate and independent state grounds doctrine, and various abstention and equitable restraint doctrines.16

Restraints on State Economic and Police Regulation

Preemption Doctrine

The preemption doctrine is rooted in the supremacy clause of the U.S. Constitution. 17 Because federal law is supreme within the realm of its constitutional authority, state law that interferes with the operation of federal law or that intrudes in the realm of federal law can be invalidated by the courts. The supremacy clause is the basis on which the federal and state legislatures and judiciaries delineate the spheres of regulatory power that are delegated exclusively to the federal government and those spheres of concurrent and supplementary federal and state governmental activity. Accordingly, the preemption doctrine is one of the primary constitutional vehicles by which the Constitution defines the profile of "Our Federalism."

The preemption doctrine identifies two general grounds on which federal law can preempt state law, including state constitutional law. First, Congress may preempt an entire regulatory area within its constitutional authority and prevent state involvement, regardless of the compatibility of state activity with federal rules and objectives, by establishing its decision to "occupy the field." Second, even where Congress has not displaced state activity in a field of regulation entirely, state law that is in "actual conflict" with federal law may be preempted.

In using the first ground, the judiciary examines a federal statute to determine whether Congress "intended" to occupy the regulatory field. Of course, explicit statutory language may define the extent to which the enactment preempts state law. 18 Even in the absence of such language, however, an intent to occupy the field may be inferred where a scheme of federal regulation is so pervasive as to preclude supplementation by the states, 19 or where the area is traditionally left to federal control.20

The judiciary may find state regulation in "actual conflict" with federal law on a number of bases. Preemption most likely occurs when federal and state laws give rise to conflicting obligations, thus making it impossible for those who are subject to regulation to comply with both federal and state rules.21 Even when federal and state laws are not contradictory on their face, a state regulation may be invalidated if it conflicts with the aims of federal law, and is, thereby, an obstacle to the accomplishment of the full purposes and objectives of Congress.22

These standards have not been applied in a uniform and consistent manner over time. Indeed, in any particular era, the Supreme Court's approach under the preemption doctrine appears to reinforce whatever theory of federal-state relations holds sway in constitutional interpretation at the time of a decision.23 Whereas the Court's earlier views of federalism were bolstered by a presumption of federal preemption in any subject area regulated by Congress,24 the current judicial view of "cooperative federalism"25 may be driving the Court's recent preemption decisions. Since 1973,26 the preemption doctrine has embodied a state-protective presumption: the traditional economic and police powers of the states will not be superseded by federal law unless Congress clearly and manifestly establishes its intent to preempt state law.27

This presumption is evident in both grounds of the preemption doctrine. Federal "occupation of the field" will not likely be implied merely from the existence of a federal regulatory scheme.28 Rather, federal exclusivity may depend on a clear statement, found in the text or legislative history of a congressional enactment, of the national objective to preempt all state regulations of the subject area.29 In the absence of such an express provision, the parameters of federal exclusivity may be limited to those discrete aspects of an industry that are extensively and comprehensively regulated in the federal statute.30 Similarly, the second ground of "actual conflict” appears to be restricted to cases in which compliance with both state and federal regulations is a physical impossibility31 (or an “imminent impossibility"32), and in which the state regulation directly and substantially frustrates the purposes of federal law.33

Thus, the current preemption doctrine generally accommodates more expansive police and economic regulatory authority in state governments, even in subject areas affected by federal law. In summary, the probability that a state constitutional grant of authority to state and local governments or the police, and economic measures enacted or enforced under such a grant, will be preempted by federal law decreases with the aggregate of the following variables: the state constitutional grant or administrative measure (1) regulates a subject matter traditionally left to the states, (2) has historic police power objectives concerning health, safety, or morals, (3) has objectives that are compatible with or supplemental to the purposes for any federal regulation in the subject area, (4) is in a subject area that has not been preempted explicitly by federal law, and (5) affects dimensions of an activity that have not been regulated comprehensively by federal law.

Dormant Commerce Clause Doctrine

Federal constitutional powers that lie "dormant" are those that have been granted to the federal government but are not currently being used. Even in the absence of federal regulation that could preempt the operation of state law, dormant constitutional powers might be enforced by the judiciary to limit state authority. Only one constitutional grant of federal power has given rise to substantial litigation under the concept of dormant powers-the commerce clause.34 The Supreme Court has interpreted the constitutional grant of congressional commerce power to imply corollary restraints on state authority to regulate certain interstate economic transactions that Congress has not attempted to control.35

The dormant commerce clause doctrine essentially furthers the federal interest in the national free trade unit: it prevents the states from erecting barriers to the movement of goods and services across state lines.36 By challenging state regulations that aim to protect local markets and industries from interstate competition, the doctrine curbs sister-state retaliation and economic balkanization.37 On the assumption that congressional "silence" in the face of parochial state legislation does not amount to federal approval of local economic protectionism,38 the judiciary stands in the stead of Congress to keep the channels of interstate commerce free of statecreated obstacles.39

The Supreme Court has developed three categories of analysis in dormant commerce clause litigation. First, state economic regulation is suspect if it discriminates against interstate commerce. A scheme is likely to be characterized as discriminatory if, on its face, it treats out-of-state competitors differently than in-state enterprises by imposing greater economic burdens on the out-of-state interests;40 even a

facially neutral scheme may be suspect if, in its operation, it so substantially and disproportionately disfavors out-of-state interests as to evidence a clear state purpose to discriminate against interstate commerce.41 Once identified as discriminatory, a state economic regulation typically will be invalidated, unless the state can demonstrate that the scheme was designed to serve a legitimate purpose other than protection of the economic interests of its own residents, such as the promotion of a significant local safety or health objective.42 Even if the state law promotes a non-protectionist purpose, differing treatment for out-of-state goods and ventures must be justified for some reason apart from their state of origin.43 In all probability, a state economic regulation found to discriminate against interstate commerce will run afoul of the commerce clause.44

Although a particular measure may not be discriminatory when viewed in isolation because it treats in-state and out-of-state enterprises in an evenhanded manner, it may nonetheless adversely affect only the economic interests of multistate businesses when considered in the aggregate of all applicable state regulations that the businesses must observe. Accordingly, the second category of dormant commerce clause cases restrains state economic schemes that subject interstate commercial activities to conflicting or inconsistent regulations from state to state. In such cases, of course, a state regulation favors localized commerce by imposing cumulative burdens on national enterprises. Typically, the judiciary requires either a showing of actual conflict among state regulations45 or of direct regulation of extraterritorial trade46 to invalidate a state economic regulation on this basis.

The third category of analysis evaluates whether a state rule that is neither discriminatory nor inconsistent with sister-state schemes places economic burdens on interstate commerce that clearly exceed the local benefits obtained. Under this "balancing" approach, the judiciary assesses the nature and the significance of the state's regulatory interests as compared to the extent of the monetary burdens and economic inefficiencies imposed on interstate commercial transactions.47 The continuing viability of this approach for enforcement of the commerce clause is in some doubt. Of late, a significant minority of the Supreme Court has opposed the balancing approach, arguing that the judiciary is institutionally incompetent to weigh the relative benefits and burdens of state economic regulations.48 In this regard, judicial skepticism is supported by theoretical arguments that dormant commerce clause analysis requires courts to operate in a quasi-legislative capacity that is explicitly disavowed in other constitutional areas.49

In the last decade, a major "loophole" in dormant commerce clause restraints has amplified the