“Wise Parents Do Not Hesitate to Learn from Their Children”: Interpreting State Constitutions in an Age of Global Jurisprudence
In this speech delivered for the annual William J. Brennan, Jr. Lecture on State Courts and Social Justice, Margaret H. Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, reflects upon the present need for comparative analysis in state and federal courts. The influence of the United States Constitution can now be seen globally in the widespread practice of guaranteeing individual rights by means of a written constitution enumerating individual rights, the interpretation of which is charged to an independent judiciary. But the influence runs in more than one direction. Chief Justice Marshall explores the global cross-pollination of constitutional jurisprudence. Noting that state constitutions often provide protection of individual freedoms beyond those guaranteed by the federal Constitution, as interpreted by the United States Supreme Court, Chief Justice Marshall suggests that state courts are optimally positioned to incorporate comparative analysis into their jurisprudence. She explores three particular substantive areas–personal autonomy, hate speech, and physical detention–as particularly appropriate for the exercise of comparative analysis involving the decisions of foreign and international constitutional courts.