Wednesday, March 02, 2005

State vs. US Constitutional Interpretation

Eugene Volokh has an interesting post today about state constitution interpretation of vague and ambiguous clauses, and the desirability of state supreme court judges interpreting their own at times broad view of these clauses, in comparison to the US Supreme Court deciding rights. It is a sort of worst case scenario analysis (I read it to be that if the state court judges get it wrong, this is better because ______). His argument is somewhat compelling. He lists:

1) the ability of states to experiment (which is not undermined as in the US Supremes deciding a Constitutional issue)
2) the remedy of the people to un-seat state court judges through vote
3) and the relative ease with which state constitutions are amended (compared to 2/3 House Vote, and 3/4 of the states for Federal Constitution.

This premise makes me nervous in lieu of the Goodridge case in MA, legitimizing gay marriage, and other instances of "judicial activism." However, Volokh is exactly right in his lesser of two evils argument. Hard to imagine right now, but the US Supremes could get one wrong as bad as Goodridge for the entire county. And this is illustrative of how much worse, and how much harder to undo would be this interpretation.