Some Dilemmas in Drawing the Public/Private Distinction in New Deal Era State Constitutional Law

Keith Whittington

Like most, I long had relatively little interest in state politics as such, despite a long-standing interest in federalism-related issues. But in recent years I have been gradually drawn into state constitutionalism, thanks largely to work on a truly remarkable casebook project that incorporates state-level discussions of constitutional principles into national-level debates and to the amazing work of a couple of graduate students with whom I had the good fortune to work. The story of American constitutional development is radically incomplete without an account of constitutionalism in the states, which supplements, extends, and contests the interpretation and construction of the U.S. Constitution. And though individual states are often idiosyncratic, there are broad currents of constitutional law, practice, and thought that flow through the states, and distinctive patterns of law and politics that a focus on the states can help illuminate.

One immediate puzzle comes from a consideration of the New Deal period. Socioeconomic and political crises put established constitutional rules and norms under pressure, and the Great Depression is, as a consequence, an important period of constitutional innovation. Obviously, a tremendous amount of work has been done on the constitutional conflicts of the New Deal era at the federal level and the constitutional revolution of 1937 in the United States Supreme Court.6 Remarkably, however, little work has been done on constitutional developments in the states during this period. To what degree did state constitutional law lead or lag federal constitutional law? To what degree did state constitutional text and law constrain the kind of policy innovations that characterized the New Deal period? To what degree were the states sites of resistance to the constitutional revolution that was taking place at the federal level? Did the constitutional battles of the New Deal have their analogues in the states, or was the federal constitutional experience itself idiosyncratic and a function of the particular array of institutions and actors that characterized national politics of the period? In this Paper, I suggest the direction of an answer to such questions. State constitutional law has been hidden in the shadows for so long that its relevance to larger problems of American constitutionalism can be easily forgotten. The handful of cases referenced here might help whet the appetite for a larger survey of constitutional development in the states, while suggesting that state-level constitutional texts and judicial decisions can put familiar issues in constitutional law in a new light.