New Judicial Federalism

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The “new judicial federalism” refers to the practice that developed in the 1970's of state courts relying on state bills of rights to provide broader protection for rights than was available under the federal Constitution.

Both the federal and state constitutions contain bills of rights restricting government, and this double security is made effective through the federal and state judiciaries, each of which bears a responsibility for enforcing constitutional rights. However, despite this system of dual guarantees and dual guarantors, for most of the nation’s history, state bills of rights and state courts played little role in the protection of rights. This changed in the 1970's, as state courts begin to rely extensively on state bills of rights to provide protection against state violations of rights, a phenomenon known as the “new judicial federalism.” Federal constitutional law still remains the primary protection for rights in the United States and the primary source of constitutional doctrine. But state constitutional law today serves as a complement to—and occasionally as an antidote to—federal pronouncements.


The new judicial federalism rests on three legal principles. First, in the present day, both federal and state bills of rights protect against the violation of rights by state governments. This was not always the case. When the federal Bill of Rights was adopted, its restrictions applied only against that government. The initial system for protection of rights was, thus, a system of parallel rather than dual protection, with state bills or declarations of rights protecting against state violations, and the federal Bill of Rights protecting against federal violations. Relying on the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court began early in the twentieth century, through a process known as selective incorporation, to gradually extend the protections of the federal Bill of Rights to prohibit state violations of rights. By the 1960's this process of selective incorporation was more or less complete, so that virtually all the guarantees of the Bill of Rights applied equally against state governments and the federal government. Thus, the actions of a state government could violate either the federal Constitution or the state constitutions (or both), and the actions of a state government might be challenged in either federal or state court.

Second, in interpreting state and federal law, the federal Supreme Court serves as the ultimate interpreter of the federal law, including the federal Constitution, but each state supreme court serves as the ultimate interpreter of its state’s law, including the constitution of that state. The U.S. Supreme Court can review the rulings of state supreme courts whenever federal law is involved. This helps ensure that state courts interpret the federal Constitution in line with authoritative Supreme Court precedent—state courts are not permitted to give either a broader or narrower reading of federal constitutional rights than has been given by the U.S. Supreme Court. However, when a case involves no claim under the federal Constitution or when a state court ruling is based exclusively on state law, on what is referred to as “independent and adequate state grounds,” the decision of the state supreme court interpreting state law, including the state bill of rights, is final and not subject to appellate review.

Third, federal law is supreme within its sphere, so when federal and state law conflict, federal law prevails. States and state courts therefore cannot recognize less in the way of rights for their residents than is required by federal law. Federal law creates a national minimum of rights, a least common denominator of rights protection. But states and state courts can provide more protection for rights than is required as a matter of federal law. Since the early 1970's, that is precisely what the states have done.


From 1950 to 1969, in only ten cases did state judges rely on state guarantees of rights to afford greater protection than was available under the federal Constitution. However, from 1970 to 2000, they did so in more than 1,000 cases. This dramatic change raises an obvious question. If the governing legal principles have not changed over time, why then has the role of state courts and of state bills of rights changed? Why did the new judicial federalism arise when it did?

The emergence of the new judicial federalism is closely linked to changes in personnel on the U.S. Supreme Court, best symbolized by the appointment of Warren Burger to succeed Earl Warren as chief justice. These personnel changes alarmed civil liberties advocates, who expected that the reconstituted Supreme Court would erode the gains they had made during the Warren Court era, particularly with regard to the rights of defendants in criminal cases. In retrospect, it appears that these fears were exaggerated: the Burger Court did not launch a full-scale assault on Mapp v. Ohio, Miranda v. Arizona, or other landmark Warren Court rulings. Nevertheless, what is crucial is that these fears led civil liberties groups to look for alternative means to safeguard rights, a search that led them eventually to embrace state bills of rights.

On initial inspection, this must have seemed an odd choice. State bills of rights protect many of the same set of fundamental rights—the freedoms of speech and of the press, religious liberty, and protections for defendants—that are found in the federal Bill of Rights, and state courts had historically not been aggressive in enforcing those guarantees. Nevertheless, several factors made these state bills of rights attractive to rights advocates. First, state judges interpreting state bills of rights are not obliged to conform their interpretations to the rulings of federal courts interpreting analogous federal provisions. Even when the language is identical or nearly identical, state judges are interpreting a unique document with a unique history, and this uniqueness may justify a different interpretation. Moreover, even if the federal courts have interpreted an identical provision in a nearly identical case, the federal ruling is not binding—states are the ultimate interpreters of their state constitutions, and they may simply disagree. They need not assume that the federal interpretation is the best legal interpretation.

Second, even when the state guarantees are analogous to those found in the federal Bill of Rights—for example, state guarantees of freedom of speech and of religious liberty—they are often framed in distinctive language. In particular, they are often more specific than their federal counterparts. For example, in addition to prohibiting governmental establishment of religion, 19 states specifically bar religious tests for witnesses or jurors, and 35 prohibit expenditures for “any sectarian purpose.” These textual differences may provide the basis for interpretations diverging from those emanating from the U.S. Supreme Court.

Third, many state declarations of rights contain additional protections that have no federal analogue. For example, 39 states guarantee access to a legal remedy to those who suffer injuries, 11 expressly protect a right to privacy, and 17 expressly protect gender equality. Thus, these constitutions offered the prospect of extending rights protections beyond those recognized by the Warren Court.

Fourth—and most important—under the doctrine of “independent and adequate state grounds,” rulings based solely on state law are not subject to federal scrutiny. This means that expansive state rulings, if based on states’ rights guarantees, are insulated from reversal by the Supreme Court. Thus, the shift to state bills of rights represented a tactical maneuver by groups eager to evade what they perceived as a less hospitable federal constitutional law.

When litigants first advanced state constitutional claims, the supreme courts in California, New Jersey, New York, and a few other states were immediately responsive to their arguments. Their willingness to adopt a far more rights-protective posture in the 1970's than state courts had in the past reflects the influence of the Supreme Court under Chief Justice Warren. The Warren Court provided a model as to how a court could approach the interpretation of rights guarantees, and in the 1970's some supreme courts seized on that example in giving broad readings to their state guarantees of rights. Thus, although the activism of the Warren Court has often been portrayed as detrimental to federalism, this activism was a necessary condition for state supreme courts becoming actively involved in protecting civil liberties. It turns out that the protection of civil liberties is not a zero-sum game, in which increased activity by one set of courts necessitates decreased activity by the other. Rather, the relationship between the federal and state judiciaries involves a sharing of responsibility and a process of mutual learning, such that a change in orientation by one set of courts tends over time to be reflected in the other set of courts as well.


The new judicial federalism originated in reaction to the rulings—or anticipated rulings—of the Burger Court, particularly in the criminal justice area. Thus, during the 1970's most rulings under the new judicial federalism involved the rights of defendants. Other early new judicial federalism rulings involved the reform of public school finance, which itself became a state constitutional issue after the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez (1973) foreclosed consideration of the issue under the federal Constitution. Finally, the issue of free speech rights on private property, such as shopping malls, arose as an important issue under state constitutions, once again emerging after the U.S. Supreme Court ruled that the First Amendment did not protect such speech. What these examples illustrate is that the new judicial federalism began as a fallback position, a second-best approach, when the preferred approach of federal constitutional protection was unavailable, and the state constitutional agenda was largely determined, ironically enough, by the adverse decisions of the U.S. Supreme Court.

More recently, important state constitutional issues have arisen that do not reflect disappointment about the judicial decisions emanating from the nation’s capital. One such issue involves the right of gay and lesbian couples to marry. This issue has never been specifically addressed by the U.S. Supreme Court, but state courts, relying on state constitutions, have weighed in on the issue. In 1993 the Hawaii Supreme Court ruled that denying marriage licenses to gay and lesbian couples violated the state constitution. Five years later, an Alaska court concluded that marriage was a fundamental right and that barring same-sex marriages amounted to sex discrimination in violation of the Alaska Constitution. In 1999 the Vermont Supreme Court ruled that the state constitution guaranteed gay and lesbian couples the same legal rights and benefits of marriage enjoyed by heterosexual couples, and it ordered the Vermont legislature to craft a law that would satisfy the ruling, either by legalizing gay marriage or by creating an equivalent partnership structure.

Another emerging area in state constitutional law, likewise one in which the U.S. Supreme Court has played no role, involves the intersection of constitutional law and tort law. Business interests, insurance companies, and the medical profession have long complained that tort law–related legal doctrines unduly favor plaintiffs, and that juries in tort cases, especially when those cases pit ordinary citizens against large corporations, tend to award compensatory and punitive damages that are arbitrary and excessive. Whatever the validity of those charges, they have received a sympathetic hearing from state legislators, who have enacted various “tort reform” statutes designed to shift the balance of power between plaintiffs and defendants. These statutes in turn have been challenged by members of the plaintiffs’ bar, who claim that they violate various state constitutional guarantees, including the right to a jury trial and the right to a redress of grievances. In several states—including Illinois, Ohio, and Oregon—these constitutional challenges have succeeded. However, the issue is far from settled, as new reform statutes are likely to spawn new litigation in state after state, making tort reform the most salient state constitutional issue of the first decade of the twenty-first century.

The states’ experience with regard to same-sex marriages and tort reform highlights a key feature of the new judicial federalism—it is intimately bound up with the political process in the states. The federal Constitution is difficult to amend, and on only five occasions has it been altered to overturn rulings of the U.S. Supreme Court. In contrast, most state constitutions are relatively easy to amend, and voters are not at all reluctant to change their constitutions, even their state declarations of rights, in order to overrule judicial decisions with which they disagree. Hawaii and Alaska did so in the 1990's with regard to gay marriage, adopting amendments confirming that marriage was confined to heterosexual couples. Massachusetts and California did so earlier with regard to state constitutional rulings invalidating the death penalty, and California and Florida did so to counter expansive interpretations of the rights of defendants under state constitutions. Controversial state constitutional rulings may thus start, rather than conclude, constitutional debates, and the participants in those debates are likely to include legislators, interest groups, and ordinary citizens, as well as judges.

From a theoretical perspective, under the American system of rights protection, the federal government provides the base, the constitutional minimum, ensuring the protection of fundamental rights, while state protections build upon that base, providing whatever additional protections the citizens of the state deem appropriate. From an institutional perspective, the logic is slightly different. The initial responsibility for protecting rights often rests with the states, both their political branches and their courts. Federal intervention usually occurs as a result of litigation, when the states have failed to meet their responsibilities. This offers substantial opportunity for state courts to develop civil liberties law under their state constitutions, and thus the new judicial federalism is likely to be a permanent feature of American federalism.


“Developments in the Law: The Interpretation of State Constitutional Rights,” Harvard Law Review 95 (April 1982): 1324–1502; Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses, 2nd ed. (Charlottesville, VA: Michie, 1996); G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998); and Robert F. Williams, State Constitutional Law: Cases and Materials, 3rd ed. (Charlottesville, VA: Lexis Law Publishing, 1999).

G. Alan Tarr

Last Updated: 2006

SEE ALSO: Bill of Rights; Brennan, William; Burger, Warren; Fourteenth Amendment; Independent and Adequate State Grounds; Incorporation (Nationalization) of the Bill of Rights; Michigan v. Long; State Constitutional Law; State Constitutions