In State v. Gunwall the Washington Supreme Court announced six criteria that Washington courts are to employ in determining whether a constitutional claim should be decided on state rather than federal grounds. This method of state constitutional analysis implicitly rejects the idea that the state constitution applies to every case in which it is raised. Instead, the method assumes that the federal Constitution controls claims that individual rights have been violated, unless application of the state constitution can be justified through use of the court's criteria. These criteria confine the development of independent state constitutional doctrines to provisions of the state constitution that are textually distinct from the federal Constitution, or to cases that present other defined reasons for departing from federal doctrine. The Gunwall court's method of state constitutional analysis undermines the role of Washington's constitution as a fundamental element of the state's law. This Note proposes a method for state constitutional analysis that is not focused on maintaining consistency with the content of federal doctrine. A principled, independent body of state constitutional law will not be readily achieved unless state courts focus directly on the text and structure of the state constitution in its entirety, without employing limitations that are keyed to federal constitutional doctrine.
Linda W. Atkins,
Federalism, Uniformity, and the State Constitution—State v. Gunwall, 106 Wn. 2d 54, 721 P.2d 808 (1986),
62 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol62/iss3/12