Washington Law Review


The first critic of the once "new judicial federalism" is also the person credited with being its "intellectual godfather"—Hans Linde. Back in the pristine years of this constitutional experiment, then Professor Linde warned: A state court cannot undertake "to evolve an independent jurisprudence under the state constitution ... by searching ad hoc for some plausible premise in the state constitution only when federal precedents will not support the desired result." Perhaps his influence in this area is attributable to the fact that he is, in a certain sense, both critic and "crusader." Of course, the claim needs to be explained. Even so, the larger point remains: from the outset, there have been troubling tenets of the "new federalism" which have made it quite vulnerable to criticism. As this constitutional movement enters the close of its second decade, scholarly criticism continues. It is that body of criticism which I will consider, if only in a preliminary manner, in this Foreword to the Washington Law Review Symposium on state constitutional law.

First Page