Now posted at SSRN:
"States of the Same Nature": Bounded Variation in Subfederal Constitutionalism
"That the federal constitution should be composed of states of the same nature, above all of republican States," Montesquieu, The Spirit of the Laws.
This paper offers a defense of the bounded variation in state- or provincial-level constitutionalism within a federation. The extreme positions are the traditionally easy normative ones: there's no reason for state-to-state variation in fundamental questions of constitutional value (because once we know what justice demands, it demands it the same everywhere), or the several states' sovereign peoples may enact any old rules they want, because democratic positivism trumps liberal justice. On the second model, states may be constitutionally constrained from the outside, by the federal courts enforcing the federal constitutions, but as a domestic matter their substantive variation could be unbounded. I don't deny that one or the other of these might accurately describe the legal situation in one or another federation. But I will argue that bounded variation is normatively preferable, not just as a middle way but as the right way to attain the benefits of a federal system. And there are at least some good reasons for internalizing the at least some of the boundaries within the constitutionalism and jurisprudence of each state. Constitutions are not social contracts, either of the positivist or the realist sort; and the hybrid constitutionalism of a federal order can't be understood just with reference to founding or with reference to moral truth. It seems to me that this leaves us in the domain of non-dispositive reason-giving and argument about the scope for constitutional variation. It typically does not count as much intellectual progress to say that answers will lie at some indeterminate point in the middle. But the claims of federal supremacy and of state sovereignty have been such that the middle has sometimes seemed squeezed out; there has been a perceived need to resolve the logic of state constitutionalism to a greater degree than the nature of the problem permits.
And one bit from further in the paper:
It is apparent that the position described here allows federal constitutional norms to have some weight in a state's domestic constitutional interpretation. It is perhaps less apparent, but noteworthy, that it allows sister-state constitutional norms and jurisprudence to have such weight. And, perhaps most surprisingly, it allows state-level norms to have weight at the federal level. Perhaps the gravitational weight of federal constitutional interpretation is greater than that of the interpretation of any one of the states, but gravity is mutual, and planets pull on the sun as well as being pulled by it.
Since I finished that draft of the paper, Professor Solum has drawn my attention to this extremely interesting argument which I'll have to incorporate into that section!