The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in a failure by scholars and jurists to articulate the historical origins of and theoretical rationales for federalization doctrine. Constitutional theory ought not only to produce doctrine, but to validate the application of existing doctrine—or interpretive practices—as well. This Article explores this constitutional lacuna by studying several historical developments of pre-Republic state courts, state constitutions, and state laws to trace the theoretical origins of federalization. Further, it sets forth a justificatory theory of federalization doctrine by arguing that the doctrine emanates from the founding generation’s practices of consulting and borrowing the pre-Republic states’ judicial opinions, constitutions, and statutes to draft and interpret the federal Constitution and its Bill of Rights. These practices of consultation and borrowing should be recognized as the theoretical antecedent for the practical application of the Supreme Court’s modern-day doctrine of federalization. The Article concludes by discussing Chief Justice John Roberts’ special application of the theory of federalization doctrine in the Court’s Moore v. Harper landmark ruling discarding of the independent state legislature doctrine.
Gerald S. Dickinson,
A Theory of Federalization Doctrine,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol128/iss1/3