Criminal Law & State Constitutions: The Emergence of State Constitutional Law

Texas Law Review (1984-85)

Full Citation

Criminal Law & State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L. Rev. 1141 (1984-85)


Shirley S. Abrahamson


Texas Law Review


Today, state supreme courts are .. functioning as laboratories in the administration of criminal justice. These courts are becoming significant constitutional law courts as judges interpret their state constitutions, as well as the federal constitution, to determine the rights of defendants in the state criminal justice system.

Federal court of appeals Judge Skelly Wright recently confessed that he had “failed to appreciate fully the contributions state courts and state judges have made, are making, and can yet make in vindicating our liberties.” Judge Wright declared himself an “enthusiastic new convert to ‘federalism'” and applauded “state judges who have resumed their historic role as the primary defenders of civil liberties and equal rights.”

No discussion of the emergence of the “new federalism” and state constitutional law in the 1980s can be complete without an examination of criminal law. Extensive court experimentation with state constitutional interpretation has taken place in this discrete area of law. This is also the crucible where the development of a body of state constitutional law is most heatedly disputed and resisted. State courts’ reliance on state constitutional criminal law is one of the most dynamic and interesting phenomena to occur in state law in years. It presents a challenge to lawyers and judges because a new major field of law is being staked out.

In Part II of this Article I summarize broadly the history, development, and current position of state constitutional criminal law in our federal system. The contemporary resurgence of state constitutional law and the varied ways in which courts now regard the interaction of state and federal constitutions are discussed in Part III. To the extent that we can see discernible patterns in the actions of state courts, Part III contains an analysis of the nature of emerging state constitutional criminal law. In Part IV I explore possible future developments.