New Article on Originalism and State Constitutions


by Jonathan Keim | September 13th, 2016

A new article by Jeremy M. Christiansen (forthcoming in the Georgetown Journal of Law & Public Policy) sheds new light on a neglected aspect of the originalism debate. Whereas academic discussions of originalism typically focus on federal judicial decision-making, Christiansen argues, state judicial methodology is usually ignored. Seeking to remedy the imbalance, Christiansen reviews historical state supreme court jurisprudence and finds that a supermajority of the states have “expressly identified originalism as the primary canon of state constitutional interpretation.” Moreover, he argues, “originalism as a theory of interpretation has been consistently invoked in state courts for far longer and with much greater consistency than in federal courts.” Read the published draft here.

As important as the U.S. Supreme Court is, there’s no question that state supreme courts are more important than most people think. The vast majority of cases filed in America are filed in state courts (Illinois alone saw more civil cases filed in 2014 than existed in the nation’s combined federal district courts). The state supreme courts that supervise state courts thus have responsibility for – and potential influence over – the legislated and common-law rules that govern citizens’ daily lives, the operations of businesses, and the function of government.

Of course, tenure on a state supreme court also has a way of revealing a judge’s true judicial philosophy. Anyone can profess lip service to traditional legal methods, but because state supreme justices sit on courts of last resort for the state law cases that come before them, no one is there to make sure they do their job. Some go wobbly, but judges who faithfully apply the law in that position send a powerful message that they can be entrusted with responsibilities that affect the whole country.

(Hat tip: Eugene Volokh.)