Volume 79, Number 5

November 2004

Neither Icarus Nor Ostrich: State Constitutions as an Independent Source of Individual Rights

Robert K. Fitzpatrick

For more than three decades, observers have vigorously debated the desirability of judicial federalism–the practice of state courts interpreting their state constitutions to provide greater protections for individual rights than does the U.S. Constitution. This Note first discusses the recent history of judicial federalism and the theoretical debate concerning it. The Note then uses two current areas of legal struggle, same-sex marriage and government funding of religious education, to illustrate the effect on judicial federalism of two important structural limitations: the greater likelihood that state constitutions will be amended to overturn politically unpopular court decisions and the supremacy of federal law. The Note concludes that, although those structural features make it less likely that state courts will aggressively expand individual rights, they also serve to legitimate judicial federalism by alleviating its potentially negative aspects and mitigating the countermajoritarian difficulty that plagues federal constitutional decisions. Thus, although state courts engaging in judicial federalism generally will not attempt to fly too high as did the mythological Icarus, nor will they remain flightless like the ostrich. Rather, judicial federalism will continue to serve as a useful means for incremental legal change in a healthy, dynamic federal system.