Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix

Abstract

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the polity that creates a constitution must be unique, determinate, and self-constructed. These are exactly the conditions that American state polities fail to satisfy, and which cannot be satisfied by any subnational unit in a system of true federalism. In such a system, subnational units are autonomous sovereigns for some purposes but not for others, and thus are simultaneously both independent, autonomously self-governing entities and hierarchically subordinate dependencies of the national government. As a result, national norms are part of the constituting matrix of the state polity, and consequently of its constitution. This in turn means that interpretation of state constitutions inevitably will require at least some resort to national norms and sources of national constitutional meaning. Yet constitutional positivism prohibits such a move, for it forbids the interpretation of one constitution by reference to sources of meaning established by some other polity and appearing in some other constitution. It is telling that one of the most common phenomena in state constitutional law today is so-called "lockstep" interpretation, in which state courts construe provisions of state constitutions to have precisely the same meaning as similar provisions of the U.S. Constitution. For this they have been routinely criticized. My argument here suggests that this criticism is not necessarily well founded.