unconstitutional unless at least four of the members of the court so decide. Does the presence of such a provision in a state constitution change the nature of the debate over the "legitimacy" of judicial review? For discussions of this debate at the federal level, see Symposium, "Constitutional Adjudication and Democratic Theory," New York University Law Review 56 (May-June 1981): 259; Symposium, "Judicial Review Versus Democracy," Ohio State Law Journal 42 (No. 1, 1981): 1. Robert F. Williams, "In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result" South Carolina Law Review C. The Position and Function of the The typical state court system occupies a different institutional position and performs a different judicial function from its federal counterpart. The typical state constitution also differs from its federal counterpart in many ways. Consequently, state court judicial review of state statutes or executive actions is or should be qualitatively different from the Supreme Court's judicial review of the same statutes or actions.... First, the typical state court's institutional position in the state system is different from the Supreme Court's position in the federal system. That is, the relationship between state supreme courts and state legislatures is fundamentally different from the Supreme Court's relationship to Congress. Beginning soon after independence, the balance of power between state legislatures and judiciaries has been gradually shifting, increasing judicial authority at the expense of legislative authority. In fact, the legislative article of most state constitutions contains many procedural and substantive restrictions on the legislature's once unrestricted, plenary authority. The original state constitutions did not include these restrictions, but they were later added in response to perceived abuses of state legislative authority. Most of these restrictions are enforceable by state courts. Also, state courts quite obviously occupy a stronger position vis-a-vis the state legislative and ex ecutive branches than does the United States Supreme Court. This is not to discount the judicial deference to which state legislative and executive actions are entitled, but to highlight the extra measure of deference, based upon federalism and other institutional concerns, which the Supreme Court accords to state legislative and executive action. Further, state court decisions directly affect only the state in which they are rendered. Judges and commentators often note this fact in support of the idea of states as "laboratories"; in other words, ill-advised experiments will affect only the citizens of the experimenting state. . . . For all these reasons, state courts are often deeply involved in the state's ongoing policymaking process (constitutional and nonconstitutional),226 Although the extent of this involvement may vary from state to state, such judicial involvement nevertheless reflects a very different institutional position from that occupied by the United States Supreme Court. Second, the typical state court's judicial function is different from the Supreme Court's. For example, state courts have traditionally performed much nonconstitutional lawmaking. As Justice Linde observed: When a state court alters the law of products liability, abolishes sovereign or charitable tort immunity, redefines the insanity defense, or restricts the range of selfexculpation in contracts of adhesion, its action is rarely attacked as "undemocratic." Nor is this judicial role peculiar to matters of common law subject to legislative reversal. The accepted dominance of courts in state law extends to their "anti-majoritarian" role in review of their coordinate political branches in state and local governments.228 226H. Glick, Supreme Courts in State Politics 5 (1971): "State supreme courts are not simply duplications of the national court at a lower level of the judicial hierarchy. Instead, they are distinctive institutions which are integral parts of state political and legal systems." See also H. Jacob & K. Vines, Politics in the American States: A Comparative Analysis 246 (3d ed. 1976) (“[I]t becomes apparent that the state courts make significant policies in many of the same substantive areas as the other organs of government."). 228 Linde, supra note 22, at 248. See also Baum and Canon, State Supreme Courts as Activists: New Doctrines in the Law of Torts, in M. Porter & G. Tarr, supra note 90, at 83. The "legitimacy" of such common-law decisions is sometimes attacked as invading the province of the legislature. See Generally Bischoff, The Dynamics of Tort Law. Court or Legislature? 4 Vt. L. Rev. 35 (1979). State Supreme Courts also pursue policy initiatives outside their formal judicial role in the adversary process, including direct and indirect contact with legislators. See Glick, Policy-Making and State Supreme Courts: The Judiciary as an Interest Group, 5 Law & Soc. Rev. 271 (1970). Federal courts have been denied this general229 lawmaking power since 1938.230 Most state supreme courts promulgate law through rulemaking powers. They also exercise various "inherent powers," usually at the expense of the legislative branch. Once thought to be legislative in nature, these powers have devolved upon state judiciaries during this century. State supreme courts do not face the same overwhelming caseload pressures and jurisdictional restrictions as does the United States Supreme Court. Some state courts even have "reach down" provisions,233 enabling them to obtain jurisdiction quickly over state constitutional conflicts requiring early resolution. Therefore, state courts are able to approach state constitutional analysis on a narrower, more incremental basis234 than the Supreme Court, which labors under intense pressure for broader, more sweeping pronouncements. Further, state courts may be viewed as closer to state affairs and more accountable235 than federal courts. Standing and justiciability barriers are usually lower at the state level.236 And in certain areas, such as criminal procedure, state trial judges are more experienced than federal judges in the problems of administering Supreme Court formulations on a daily basis. Many state judges now view their roles as some 229 As of the remaining areas of "federal common law," see Friedly, In Praise of Erie-And of the New Federal Common Law, 39 N.Y.U.L. Rev. 383 (1964). 230 Erie R.R. v. Tompkins, 304 U.S. 64 (1938). 233 See, for example, England, Hunter and Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U. Fla. L. Rev. 147, 193-96 (1980); England and Williams, Florida Appellate Reform One Year Later, 9 Fla. St. U. L. Rev. 221, 250-53 (1981). 234 Cf. Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84 Harv.L.Rev. 769, 778-79 (1971). 235 See Developments in the Law, supra note 2, at 1351. See also Ladinsky and Silver, Popular Democracy and Judicial Independence, 1967 Wis. L. Rev. 128; Moser, Populism, A Wisconsin Heritage: Its Effect on Judicial Accountability in the State, 66 Marq. L. Rev. (1982) (tracing various methods of ensuring judicial accountability); But see Canon, The Impact of Formal Selection on the Characteristics of Judges Reconsidered, 6 Law & Soc'y Rev. 591 (1972) (citing lack of difference between elected and appointed judges); Flango and Ducat, What Difference Does Method of Judicial Selection Make: Selection Procedures in State Courts of Last Resort, 5 Just. Sys. J. 25 (1979) (same). In 1808 two Ohio judges were impeached apparently because they held a legislative act unconstitutional. See T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 193 n.3 (6th ed. 1890). 236 Linde, supra note 22, at 248; Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 Harv. L. Rev. 1373, 1400-02 (1978). times requiring controversial constitutional rulings.237 Third, state constitutional rights may differ qualitatively from federal constitutional rights. Some state constitutions, for example, grant or are judicially interpreted to provide citizens with certain affirmative rights.238 These rights may require different and more aggressive judicial enforcement than is necessary in federal constitutional law, which is concerned primarily with limiting governmental power.239 Also, the text of a state constitution may provide for state judicial review of legislative and executive action.240 This is certainly true with respect to state supreme courts' advisory opinions.241 In fact, judicial review itself was a phenomenon of state law before Marbury v. Madison.242 And contrary to the federal experience, most judiciary provisions of state constitutions have been revised and ratified in this century without a serious struggle over the exercise of judicial review. State constitutions are generally longer and more detailed than their federal counterpart. Many state constitutions directly regulate or restrict state government activities. The state constitution is a document that primarily limits the legislature.243 State courts interpreting state constitutions are therefore thrust more deeply, and more often, into the affairs of the coordinate branches of government244 than is the Supreme Court. 237 Sheran, State Courts and Federalism in the 1980's: Comment, 22 Wm. & Mary L.Rev. 789, 791 (1981). See also Peterkort, The Conflict Between State and Federal Constitutionally Guaranteed Rights: A Problem of the Independent Interpretation of State Constitutions, 32 Case W. Res. L.Rev. 158, 159 n.8 (1981). But see Karst, Book Review, 28 Stan. L Rev. 829, 834-35 (1976) (correlating the method of judicial selection with state constitutional activism).... 238 Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 240–43, 635 P.2d 108, 114–15 (1981). 239Handler, supra note 164, at 205 (citing Right to Choose v. Byrne, 91 N.J. at 331-32, 450 A.2d at 948-49 (Pashman, J., concurring in part and dissenting in part)). See also Alderwood Assocs., 96 Wash. 2d at 240, 635 P.2d at 114. 240 See, e.g., Rees, State Constitutional Law for Maryland Lawyers: Judicial Relief for Violations of Rights, 10 U. Balt. L. Rev. 102, 107-11 (1980); Ill. Const. Art. IV sec. 13 (1970) (whether a special act of the legislature is or could be governed by general law is a judicial question). 241 See generally Williams, supra note 2, at 212-13; Comment, The State Advisory Opinion in Perspective, 44 Fordham L.Rev. 81 (1975). 2425 U.S. (1 Cranch) 137 (1803). See generally Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860, 120 U. Pa. L. Rev. 1166 (1972). 243 Williams, supra note 2, at 178-79. 244 See generally Grad, The State Constitution: Its Function and Form for Our Time, 54 Va. L. Rev. 928 (1968). State judicial review, therefore, is not simply a miniature replication of Supreme Court judicial review. Federal judicial review since Marbury245 takes place in a unique institutional setting. 245 See supra note 242 and accompanying text. Of course, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), invalidated a federal, not a state, statute. But the Marshall Court soon invalidated state laws in cases such as Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). See generally J. Nowak, R. Rotunda, & N. Young, Constitutional Law 15-21 (2d ed. 1983). C. Judicial Rulemaking under State Constitutions: Practice and Procedure These materials are primarily concerned with the decisions of state courts in adjudicated cases. This is, generally speaking, what we think of courts doingresolving controversies between litigants, or adjudicating disputes. A major component, however, of the judicial powers of state supreme courts under state constitutions is exercised through nonadjudicatory policymaking-the rulemaking power. Early in this century commentators began to assert that the power to regulate practice and procedure in the courts was an inherent judicial power. John Henry Wigmore argued in 1928 that "the legislature... exceeds its constitutional power when it attempts to impose upon the judiciary any rules for the dispatch of the judiciary's duties; and that therefore all legislatively declared rules for procedure, civil or criminal, in the courts, are void, except such as are expressly stated in the Constitution." John Henry Wigmore, "All Legislative Rules for Judiciary Procedure are Void Constitutionally," Illinois Law Review 23 (November 1928): 276. See also Roscoe Pound, "The Rulemaking Power of the Courts," American Bar Association Journal 12 (September 1926): 599. In more modern times, state constitutions have been amended specifically to include this power for state supreme courts. Article 6, Section 2, Paragraph 3 of the New Jersey Constitution provides: The Supreme Court shall make rules governing the administration of all courts in the State and subject to law, the practice and procedure in all such courts. . . . In the following case, the court confronted the question of whether the time period in which an appeal may be taken was governed by a court rule or by a conflicting statute. Winberry v. Salisbury 5 N.J. 240, 74 A.2d 406 (1950), cert. denied 340 U.S. 877 (1950) The phrase "subject to law" is not only ambiguous, but elliptical. No word in the law has more varied meanings than the term "law" itself. Nor is the phrase "subject to" crystal clear, for the phrase implies a limitation rather than a grant of power. It is argued by the plaintiff that “subject to law" means subject to statute law or legislation. If this is what the Constitutional Convention intended, it would have been easy for it to say so. We must take the phrase as we find it and endeavor to ascertain its meaning in the light of the entire Constitution and of the intent of the people in adopting it. There can be no doubt in the mind of anyone familiar with the work of the Constitutional Convention or with the ensuing election at which the Constitution was adopted by the people that, along with the desire to strengthen the powers of the Governor and to amplify the powers of the Legislature, there was a clear intent to establish a simple but fully integrated system of courts and to give to the judiciary the power and thus to impose on them the responsibility for seeing that the judicial system functioned effectively in the public interest. Indeed, in the minds of many, if not a majority, of our citizens this was the primary reason for their desire for a new constitution. If "subject to law" were to be interpreted to mean subject to legislation, it would necessarily follow that once the Legislature had passed a statute in conflict with a rule of court, the rule-making power of the Supreme Court would be functus officio, for it would be intolerable to hold, as has been suggested to us, that after the Legislature has passed an act modifying a rule of court, the Supreme Court might in turn adopt a new rule overriding the statute, and so on ad nauseam. Such an unseemly and possibly continuous conflict between these two departments of the state government could never have been contemplated by the people. And yet if "subject to law" means subject to legislation, any other construction of the rule-making power would be in conflict with the fundamental rule of constitutional construction that unless the context clearly requires otherwise, a constitutional grant of authority is to be interpreted as a continuing power. As one studies the Judicial Article of the Constitution and its carefully designed provisions for an efficient judicial organization with unusual powers of effective administration, it is evident that the people of this State thought of the rule-making power in the Supreme Court as a continuous process. In this connection it is significant to note that neither the Constitution of 1776 nor that of 1844 contained any provisions whatsoever as to rule-making, admission to the practice of law, the discipline of the bar, an administrative head of the courts, or the assignment of judges. All of these powers are necessarily of a continuing nature if the judges are to be held responsible for the functioning of the courts. It is inconceivable that the people granted continuing power to the courts in all these respects but withheld it with reference to rule-making, which is quite as essential to the operation of an integrated judicial establishment as are any of the other powers. Article VI, Section II, paragraph 3 of the new Constitution not only gives the Supreme Court the rule-making power, but it imposes on the Supreme Court an active responsibility for making such rules-"The Supreme Court shall make rules." If there were any doubt as to the continuous nature of the rule-making power, such doubt would be resolved by this imposition of the positive obligation on the Supreme Court to make rules for all the courts. An analysis of all of the pertinent provisions of the Constitution serves to convince us that the phrase "subject to law" cannot be taken to mean subject to legislation.... What, then, is the meaning of "subject to law”? The only interpretation of "subject to law" that will not defeat the objective of the people to establish an integrated judicial system and which will at the same time give rational significance to the phrase is to construe it as the equivalent of substantive law as distinguished from pleading and practice. The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in the courts, is a fundamental one that is part of the daily thinking of judges and lawyers. Substantive law includes much more than legislation, it comprehends also the rights and duties which have come down to us through the common law. The phrase "subject to law" in Article VI, Section II, paragraph 3 of the Constitution thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of the substantive law as such. While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power. The only contrary authority that has been cited to us is the statements contained in the Report of the Judiciary Committee of the Constitutional Convention. Thus, it said at pages 7 and 8 of its report: The third shortcoming of the existing judicial organization, and perhaps the most costly, is the total lack of business-like organization, coordination and supervision of the courts as a whole. A corollary feature of this condition is the practice of resigning responsibility for the formulation of practice and procedure to intermittent revision by the Legislature. . . . This Court was given the power to make rules for administration, practice and procedure in all courts, subject to the overriding power of the Legislature with respect to practice and procedure. But this report of the Judiciary Committee, though dated August 26, 1947, was not handed to the members of the Convention until August 28th, I Convention Proceedings Record 809, two days after the Judicial Article had been adopted by the Convention on August 26th, I Convention Proceedings Record 809, two days after the Judicial Article had been adopted by the Convention on August 26th, I Convention Proceedings Record 793. The report of the Judiciary Committee therefore cannot be deemed a part of the parliamentary history of the Constitution, for it was not known to and was not acted upon by the members of the Constitutional Convention in voting in favor of Article VI, creating a new judicial system. The report, moreover, while signed by all of the members of the Committee, concludes by saying, “Although the foregoing is the report of the Judiciary Committee, it is not necessarily to be inferred that the comments therein contained express the views of all members." Thus not only was the report of the Judiciary Committee from which we have quoted not before the Convention at the time that it acted on Article VI, but a search of the entire proceedings fails to disclose any debate on the meaning of the phrase "subject to law." The chief debate on the Judicial Article was be |