Responding to Holden Tanner and Jesse Merriam, Jeffrey Bristol argues that state courts limit themselves by adopting the same sort of originalism as federal courts–and that Erie, far from wrenching common law reasoning from the states, actually returned state courts to power.
“It may seem surprising to say that originalism ignores state power. Originalist jurists do consider the issue occasionally, but such regard usually concerns federal courts’ limitations rather than developing states’ authority per se. I argue this ignorance emerges from several factors that simultaneously enable rich federal constitutionalism while concealing the depth of the states’ police powers: the robust nature of the federal constitutional debate and the Constitution’s historical contingency; the delegation of the federal government’s powers, which makes those powers simpler and more easily theorized than the states’ broader authority; and the fact that state courts follow federal jurisprudence, aping its theories and therefore passing below interpretive notice themselves. The last is particularly lamentable. Since the powers of state and federal governments differ greatly under the Constitution, theories applying to one ill-fit the other.”
“The federal constitution…possesses a long, publicly debated development with an initial awareness that it emerged from a contingent process, meaning that the historical conditions producing it were important to its creation and interpretation.”
“State constitutions lack this development. They typically emerge from indefinite historical contexts through stereotyped conventions with little to no public engagement or via popularly ratified amendments involving political campaigns lacking sustained debate, depriving them of the fodder necessary for originalist rumination.”
“Contemporary originalism developed against progressive jurisprudence to constrain the federal judiciary to its delegated powers. It never theorized plenary powers. While state bodies could have initiated such inquiries on their own, two factors limited them: first, the problem that originalism is a theory of written law while states exercise many uncodified powers; and second, state courts often move in lockstep with federal courts, sometimes even constitutionally substituting the jurisprudence of federal courts for their own. Consequently, even when state courts adopt originalism, they pin themselves into theories that are ill-suited to their peculiar legal context and prevent themselves from developing specific theories for their own powers. This ligature stunts conservative state legal theory since states’ plenary power has a distinct moral centering that federal powers lack (as even Scalia recognized in his dissent in Lawrence v. Texas).”
“Because conservatives, the party most interested in state power, spent so long pushing a theory of law lacking arguments about plenary powers, conservative jurisprudence has functionally removed states from action. This lack of reasoning has allowed the progressive narrative of domineering federal jurisprudence to run roughshod over states. While these progressives are most responsible for federal usurpations, the conservative failure to check this invasion left states with no theoretical apparatus to fight back. Worse, the embrace of a federally-centered theory like originalism tacitly endorsed the substitution by making the federal constitution the center of conservative legal argument with the states as mere afterthoughts to be shoe-horned later. Erie seems to chain the federal system to the states very effectively, providing a unique leverage point to shape definitively the growth of American jurisprudence by planting seeds at this fundamental level.”
Read the full piece here.