Myron Steele (Government of the State of Delaware – Supreme Court of Delaware) and Peter Tsoflias (Widener University – School of Law) have posted Realigning the Constitutional Pendulum (Albany Law Review (2014)) on SSRN. Here is the abstract:
The United States Constitution — an instrument modeled after state constitutions — uniquely creates a federal government of limited and enumerated powers, leaving general police power to the individual states. This governmental framework, if properly carried out, strikes the appropriate balance of power. With the federal government supervising matters of national concern, states are able to respond effectively and efficiently to local problems. What’s more, this system of government suitably promotes state experimentation — a necessary ingredient to economic and social amelioration. In this article, we argue that federal courts, through their broad interpretation of the federal Constitution, have deleteriously altered this power equilibrium. We refer to this equilibrium as the “constitutional pendulum,” and with each broad federal constitutional interpretation, the constitutional pendulum becomes misaligned.
We begin by briefly discussing the key components of the federal constitutional framework and the benefits of state experimentation. We then highlight some of the ways in which states, through their individual constitutions, have benefited from this system of government. Next, we argue that a broad interpretation of certain federal constitutional provisions improperly shifts power to the federal government, thereby stifling state innovation. We posit that more narrowly interpreting the federal Constitution swings the constitutional pendulum back to its rightful place, distributing power appropriately between state and federal government. To illuminate this point, we analyze a recent Third Circuit decision (decided by a divided three judge panel) interpreting (albeit incorrectly) the United States Constitution’s First Amendment’s right of public access: Delaware Coalition for Open Government, Inc. v. Strine.
Posted at 6:13 AM