Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,\u27 must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state\u27s. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ. This is unfortunate. Understood through the lens of a comparative method, state constitutional law takes on a new level of richness. Of course, many have argued that state constitutions are unique and that state constitutional interpretation ought to adjust to the character of the people of a state or region, suggesting a variety of distinct interpretive approaches between the states. Apart from this argument, suggested by many advocates of the new judicial federalism, there is little discussion of state courts\u27 divergence in result from federal courts in deciding similar constitutional issues. In fact, in contrast-and perhaps in reaction-to character- based interpretive arguments, some have suggested that state courts seek out common American values, disregarding or discounting peculiar features of their own systems of governance. According to Paul Kahn, efforts of state courts to ground constitutional interpretation in unique state sources, whether textual or attitudinal, is anachronis- tic, because Americans identify with a national community and share fundamental values. James Gardner, a consistent critic of the new judicial federalisni, also endorses a notion of national unity in state constitutional interpretation. Gardner argues that a state court should part company with the United States Supreme Court for no other reason than, in the state court\u27s view, the Supreme Court has gotten it wrong. \u27 Yet, it should come as no surprise that, in practice, a lockstep approach is rarely followed. State courts sometimes reach different results than their federal counterparts in deciding issues of constitutional law because states are distinct institutions of governance, in terms of their sizes, decision making structures, populations, and histories