Hastings Constitutional Law Quarterly


Notwithstanding that the new judicial federalism is no longer new, the question remains whether there is a legitimate basis for state supreme courts to interpret provisions of state constitutions that parallel provisions of the United States Constitution differently than the United States Supreme Court has interpreted the latter. The Author suggests that the interpretation of cognate state constitutional provisions by state court is institutionally legitimate and normatively desirable within the framework of federalism. The legitimacy of the practice is supported by the constitutional value of dialogue - that is, the value that attaches to discourse about law and governance when that discourse occurs between and among the various organs of the federal and state governments.