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In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights and federalism protect liberty, but they do so by very different mechanisms, and those mechanisms can at times operate at cross-purposes. Federalism protects liberty not by offering an opportunity for the continuous expansion of human rights protections, but by creating a system of dual agency in which the people appoint two agents, one state and one federal, to monitor and check the abuses and errors of the other. Nothing in that system inherently requires the expansion of rights on the state level, and it can just as easily support their contraction. The value of independent state constitutional law lies in its availability as a tool by which state agents can protect the people’s interests by staking out and institutionalizing positions opposing those taken by the national government, whatever they may be. In the arena of rights, it is thus to be expected – and it is observed – that the state and national governments will sometimes agree and sometimes disagree about the appropriate scope of protection to be afforded various human rights, and that disagreement may manifest itself in a competitive struggle in which each level attempts to advance its own view at the expense of the other.

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Ohio State Law Journal

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Originally published in 77 Ohio St. L.J. 355 (2016)

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Originally published in 77 Ohio St. L.J. 355 (2016)